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UNIVERSITY  OF  NORTH  CAROLINA 
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UNIVERSITY  OF  N.C  AT  CHAPEL  HILL 


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A  DIGEST 


OF  AT.T/   THE  KEPORTED   CASES, 


BOTH    IN    LAW   AND   EQUITY, 


DETERMINED   IN   THE 


COURTS  OF  NORTH  CAROLINA, 


FROM   THE 


EARLIEST  PERIOD  TO  THE  PRESENT  YEAR, 


TOGETHER    WITH 


A  TABT.K  «>K  THM   NAMi:S   t)!"  TH  K   CASKS. 


PREPARED     BY 
A  Judge  of  the  Supreme  Court. 


IN    THKKE    VOLUMES. 


THE  FIRST   AND    SECOND  VOLUMES  CONTAINING  THE  LAW,   AND  THI5 
THIRD  VOLUME  THE  EQUITY  CASES. 


VOLUM  K     11. 


RALEIGH : 

NICHOLS,  GORMAN  &  NEATHERY,  BOOK  AND  JOB  PRINTERS. 

1866. 


DIGEST 


VOLUME   11.       * 


HABEAS  CORPUS. 

i;  In  air  cases-  of  habeas  corpv s  he'iore  any  judge  or  court, 
where  the  contest  is  in  respect  to  the  custody  of  minor  children, 
either  party  may  appeal,  by  virtue  of  the  act  ot  1858,  ch.  53. 
Musgrove  v.  Kornegayy  7  Jones,  71. 

2-  Where  a  child,  over  twelve  years  old,  has  been  illegally  de- 
tained as  an  apprentice,  under  a  deed  executed  by  the  father 
alone,- the  proper  order,  upon  a  habeas  corpus,  is  that  the  infant 
be  discharged  to  go  where  he  pleases;  but  where  an  infant, 
illegally  detained,  is  under  the  age  of  twelve,  the  proper  order  is 
that  he'^be  restored  to  his  father.      Ibid. 

3.  The  courts  and  judges-  of  this  state  have  concurrent  juris- 
diction'with  the  courts  and- judges  of  the  Confederate  States,  in 
the  issuing  of  writs  of  habeas  corpus,  and  inquiring  into  the 
causes -of  the  detention,  where  such  detention  is  by  an  officer  or 
agent  of  the -Confederate  States.  In  the  matter  of  Bryan,  1 
Winston,  1. 

4.  The  supreme  court  has  jurisdiction  to  issue  writs  of  habeas 
corpus  returnable  before  itself,  and  to  consider  and  determine  on 
the  causes  of  detention.     Ibid. 

5.  Where  the  object  of  a  writ  of  habeas  corpus  is  to  inquire, 
whether  there  be  probable  cause  of  commitment,  the  decision  on 
it  is  not  the  subject  of  review  by  writ  of  error  or  certiorari.  But 
where  the  question  on  the  writ  of  habeas  corpus  is  concerning  the 
power  of  the  committing  magistrate  or  court,  or  of  the  legality 
of  the  commitment,  the  weight  of  auti;ority  is  in  favor  of  the 
doctrine  that  the  decision  is  subject  of  review.  Walton  \.  Gat- 
lin,  1  Win  St.,.  3 18: 

6.  The  decision  on  a  writ  oi  habeas  corpus,  the  object  of  which 
is  to  free  a  person  from  restraint,  for  any  other  cause  than  the 
commission  of  a  criminal  offence,  is  a  judgment,  and  the  subject 
of  review  by  writ  of  error  or  certiorari.     Ibid. 

7.  The  supreme  court  has  the  power  to  review  the  action  ot 

1* 


G74  HABEAS  CORPUS.— HEIRS. 

the  superior  courts,  aud  of  tlie  judges  in  vacation,  upon  ques- 
tions of  law  in  all  cases  under  the  naheas  eovpiis  act,  Rev.  Code, 
ch.  55,  sec.  10.     Ihkl. 

8.  A  soldier  actually  and  rightfully  in  the  army  can  have  no 
relief  by  the  writ  of  habeas  corpus^  against  any  alleged  abuse  of 
military  authority.      Cox  v.  Gee,  2  Winst.,  131. 

9.  If  he  be  lurongfnlly  held  as  ;a  soldier,  he  is  not  entitled  to  a 
writ  of  liaheas  corpus,  while  he  i-s  undergoing  punishment,  or 
awaiting  a  trial,  i§)X  a  military  offence.     Ihid. 

See  (Contempt,  3.) 


HEIRS. 

1.  Where  there  is  judgment  and  execution  against  an  ances- 
tor ill  his  life  time,  no  sci.  fa.  is  necessary  against  the  heirs  or 
devisees,  but  the  execution  attaches  upon  the  land,  and  goes 
with  it  to  whomsoever  it  may  come.   Baiter  v.  Long,  1  Hay.,  1,  (2.) 

2.  Since  the  statute  of  5 'Geo.  2,  ch.  7,  (Rev.  Code,  ch.  45,  sec.  2,) 
the  same  distinction  exists  between  real  and  personal  property 
as  before,  and  lands  descended  to  an  heir  are  not  affected  by  a 
judgment  against  the  executor  as  such;  they  must  be  proceeded 
ao-ainst  by  sci.  fa.  against  the  heir,  if  plene  administravit  be 
found  for  the  executor.     Balair  v.   Wehh,  1  Hay.,  43,  (55.) 

3.  The  heirs  are  liable  in  an  action  of  debt,  upon  the  bond  of 
their  ancestor  wherein  they  are  named:;  altliough  there  rnay  be 
personal  effects  in  the  hands  of  the  executors.  Long  v.  Balier, 
•2  Hay.,  128,  (21)1.) 

4.  To  an  action  against  an  heir  on  the  simple  contract  of  his 
ancestor,  he  may  plead  that  the  executor  has  assets.  LQais  v. 
Shqxtrd,  2  Hay.,  218,  (390.) 

.  5.  H"  an  heir  pay  debts  of  his  ancestor,  lands  descended  of  that 
amount  shall  be  deemed  to  have  been  purchased  by  the  heir,  and 
shall  not  be  liable  to  other  debts.  Gibson  v.  WUliams,  2  Hay., 
2S1,  (45(1.) 

().  As  to  the  other  part  of  the  land,  it  shall  be  charged,  not 
;acc<.>fding  to  its  value  at  the  time  of  the  descent  to  the  heir,  but 
ifs  value  at  the  time  he  sold  it.     Ihid. 

7.  On  the  surplus  beyond  the  amount  paid  tor  the  ancestor, 
the  heir  shall  not  be  lial)le  for  interest.     Ibid. 

8  Whe)-e  an  heir  had  sold  lands  descended  befor  a  sci.  fa.  had 
issued  to  (charge  them,  the  purchaser  niay,  in  the  name  of  the 
hen-,  he  permitted  to  plead  to  the  sci.  fa.  that  the  executor  has 
assets.     Hamilton  v.  Jones,  2  Hay.,  291,  (474.) 

9.   If  an  heir  plead  to  a  sci.  fa.,  nothing  by  descent  or  devise,  and 


HEms.  675 

it  be  founcl  against  liim,  judgment  shall   be  d'.  bonis  piryirlis. 
Hamilton  v.  Sitiuns,  2  Hay.,  291,  (-475.) 

10.  Before  an  heir  can  be  made  liable  as  sncli,  it  must  be  shown, 
that  to  the  lands  descended  his  ancestor  had  a  good  title.  Ham- 
ilton V.  Simms,  2  Hay.,  32(5,  (49(3.) 

11.  A  judgment  of  execution  against  the  real  estate  of  a  de- 
ceased debtor  was  reversed,  because  it  Avas  not  found  that  the 
executrix  had  fully  administered,  and  had  no  assets,  or  not  suffi- 
cient to  satisfy  the  creditor's  demand.  CardioeU  v.  Brodie,  1 
:\Iurph.,  97. 

12.  A  judgment  against  the  administrator  creates  no  lien  on 
lands  descended  or  devised,  and  lands  bona  fide  sold  by  the  heir 
or  devisee,  before  a  sci.  fa.  sued  out  against  him,  are  not  liable 
for  the  debts  of  the  deceased.  JVillianis  v.  Aslxtiv,  2  ^vlurph.,  2^. 
(The  law  in  relation  to  the  land  ot  a  deceased  debtor  is  greatly 
altered.     See  Rev.  Code,  ch.  4(i,  sec.  46  and  following.) 

13.  An  action  of  debt  will  not  lie  against  lieirr,  upon  a  bond 
in  which  they  are  not  expressly  named.  Taijlor  v.  Grace.  2 
Murph.,  (36. 

14.  If  lands  descended,  or  devised,  have  been  bona  Jide  sold 
Ijefore  a  sci.  fa.  issues,  to  satisfy  a  debt  of  the  ancestor,  under  a 
prior  lien,  they  of  course  are  not  liable  under  the  sci.  fa.  If 
sold  to  satisfy  the  heir's  or  devisee's  own  debt,  the  heir  or  devisee 
is  personally  liable,  as  if  he  himself  had  sold  them,  l)ut  the  land 
is  not  liable".  Spaight  v.  JFade,  2  Miirph.,  295.  8.  C.  1  Car.  L.  R. 
284.  (29.; 

15.  If  the  lands  have  been  fraudulently  sold  before  sci.  fo., 
and  are  not,  in  point  of  fact,  in  the  hands  of  the  heir  or  devisee, 
the  lands  are  still  liable  to  the  demands  of  creditors.     Ibid. 

16.  When  execution  issues  in  such  cases,  the  plaintiff  pro- 
ceeds at  his  peril ;  he  can  sell  all  lands  descended  or  devised, 
uidess  they  have  legally  passed  into  other  hands.     Ibid. 

17.  A  sale  of  land  under  aji.  fa.,  which  issued  and  bore  te^te 
after  the  death  of  the  debtor  dying  seized,  without  any  sci.  fa. 
against  his  heirs  or  devisees,  conveva  no  title  to  the  purchaser 
Bowenw  McCuUock^.  C.  Term,  R'.',  261,  (684.) 

18.  Under  the  act  of  1784,  the  heirs  may  plead  to  a  .9c/.  fa.  to 
subject  to  sale  the  lands  descended,  that  the  executor  had  not 
fully  administered,  or  that  he  had  suffered  judgment  to  be  re- 
covered by  fraud,  &c.,  but  the  "  plea  that  the  lands  descended 
had  been  sold  to  satisfy  prior  judgments  "  is  totally  immaterial ; 
and,  although  the  jury  may  find  it  true,  the  plaintiff  is  entitled 
to  judgment  of  execution  against  the  lands  descended,  as  if  no 
plea  had  been  pleaded.     Ti-emhle  v.  Jones,  3  Murph.,  579. 

19.  The^  proviso  in  the  last  section  of  the  act  of  1789  does 
not  prevent  an  execution  from  issuing  under  that  act,  and  the 
act  of  1784,  where  one  of  several  heirs  is  a  minor,  but  only  di- 
rects that  it  shall  not  be  levied  on  the  property  of  the  infant  de- 


!576  HEIRS.. 

fendant..  Therefore,. where  judgment  was-obtained  against  sev- 
eral co-heirs,  one  of  whom  was  an  infant,  iY  was  held  that  the 
creditor  might  sue  out  his  execution  and  obtain  satisfaction  from 
tlie  hands  of  the  adults..  Bank  of  Ncicbern  v.  Stanley.,  2  Dev., 
47(). 

20.  An  execution  against  the  land  of  an  infant,  under  the  acts 
of  1784  and  17*59,  ought  to  appear  upon  its  face  to  have  issued 
upon  motion  after  a  stay  of  twelve  months,  otherwise  the  sherift' 
may  or  may  not  act  upon  it,  and  he  will  or  will  not  be  justified 
bv  the  fact ;  but  he  may  levy  instanter  upon  the  property  of  the 
adults.     Ibid. 

21.  xVlthough  satisfaction  of  a  decree  in  equity,  against  an  ex- 
ecutor who  has  fully  administered,  can  now  be  had  out  of  the 
lands  of  the  testator,  oidy  upon  a  bill  against  the  heirs,  yet  a  sale 
under  an  order  made  upon  a  sci.  fa.  is  valid.  White  v.  Albertsori, 
H  Dev.,  241. 

22.  Where  the  heirs  have  land  descended  from  both  parents, 
a  creditor  cannot  sell  that  descended  from  the  mother,  under  a 
judgment  against  that  descended  from  the  father,  although  the 
mother  held  as  devisee  of  the  father.  Trotter  v.  jSelby,  '6  Dev., 
374. 

23.  A  judgment  on  a  sei.  fa.  against  an  heir,  when  his  name 
is  neither  set  forth  in  the  writ,  nor  in  the  return  of  the  sheriff, 
is  a  nullity,. and  a  purchaser  under  it  acquires  no  title..  Bonner 
V.  Tier,  3  Dev.,  533. 

24.  Where  a  judgment  was  obtained  against  an  infant  heir,  by 
sei.  fa.  under  the  act  of  1789,  with  a  stay  of  execution  for  one 
year,  during  which  time  another  creditor  commenced  suit,  and 
obtained  judgment  against  the  heir,  on  the  bond  of  his  ancestor, 
and  issued  a,Ji.  fa.  before  the  expiration  of  the  stay,  it  was  held 
that  a  purchaser  under  it  had  a  better  title  than  one  under  a 
f.  fa.,  afterwards  issue  d  upon  the  first  judgment.  Bichs  v.  Blovnt, 
'4  Dev.,  128. 

25.  The /rov/.9r),,  to  the  last  section  of  the  act  of  1789,  applied 
probably  only  where  the  guardian  had  sold  property  to  pay  the 
debt;  but,  at  all  events,  it  extended  only  to  judgments  upon  a 
sci.  fa.,  not  to  those  in  debt  upon  the  bond  of  the  ancestor. 
Ibid. 

26.  Nothing  but  a  writ  in  debt,  or  a  sci  fa.,  is  "an  action 
brought  or  process  sued,"  within  tke  act  of  1789,  to  restrain 
alienatio]!  by  an  heir.  And  process  against  an  heir  created  a 
lien  upon  the  real  estate,  only  as  to  him,  and  j)iii"chasers  under 
him — not  as  to  otlier  creditors.  Ibid.  (The  remedy  against  the 
real  estate  of  deceased  persons  in  favor  of  creditors  is  greatly 
altered.     See  Rev.  Code,  ch.  4(5,.  sec.  44,  and  following.) 

27.  Land  cannot  be  sold  under  a  fi.  fa.,  Avhich  issues  and  bears 
teste  after  the  death  of  the  debtor,,  without  bringing  in  the  heirs 
hy  S'^i.  fa.;  although  the/,  fa.  may  be  an  alias,  the  original  of 


HEIRS.  677 

^which  issued- and 'bore  teste  in  the  life  time- of  the  debtor.     Wood 
■v.  Harrison,  1  Dev.  and  Bat.,  35'6. 

28.  A  writ  from  a  court,  commanding  the  sheriff  to  summon  A 
^^and  B,  heirs  of  C  deceased,  to  be  and  appear,  &c.,  "  then  and  there 

to  show  cause,  if  any,  why  D  shall  not  have  judgment  agamst 
the  lands  of  said  deceased,"  in  the  hands  of  his  said  heu's,  for  $150, 
besides  interest  and' cost,"  is  not  such  a  sci.  /a.  ^as  is  rcquu-ed  by 
the  act  of  1784,  subjecting  the  real  estate  of  a  deceased  person 
to  the  payment  of  liis  debts,  though  a  debt  may  have  been  pre- 
viously established  against  the  administrator,  the  plea  of  fully 
administered  found  in  his  favour,  judgment  signed,' and  an  award 
of  .sfi  fa.  against  the  heirs.     Barroio  v.  Arrenton,  1  Ired.,  228. 

29.  'Such  a  Avrit  does  not  set  forth  nor  refer  to  a  judgment  i)re- 
viously  rendered  in  any  action  for  any  person,  and  of  course_  does 
not  call  on  the  heirs  to  show  cause  A^"hy  execution  on  that  judg- 
ment shall  not  issue  against  the  lands  descended  to  them.  And, 
where  upon  the  return  of  such  a  writ,  judgment  by  default  was 
entered  upon  the  record,  and  an  award  of  execution  against  the 
lands  in  the  hands  of  the  heirs,  held  that  the  judgment  was  a  nul- 
lity, and  that  a  purchaser  at  the  sheriffs  sale,  under  an  execu- 
tion issuing  upon  it,  acquired  no  title.     Il/itL 

30.  Although  a  sci.  fa.  against  heirs  and  ferreienants  need  not 
name  them,  but  leave  "it  to  the  shcriflf  to  summon  and  return 
them,  yet  the  judgment  is  always  against  particular  persons. 
and  the  writ  of  execution  muftt  name  the  same. persons.  Bobert- 
mn  V.  WooUard,  6  Ired.,  90. 

31.  An  execution  commanding  the  sheriff  to  sell  the  lands  _oi 
A.  B.  "in  the  hands  of  his  heirs""  wuthout  naming  them,  is  void, 
and  a  sale  under  it  confers  no  title.     Ibid. 

32.  A  sale  of  land,  under  a  fi.  fa.  bearing  fc^^/e  alter  the  death 
of  the  defendant  in  the  execiition,  where  his  heirs  have  not  been 
made  parties,  is  void.     Staie  v.  Pool,  6  Ired.,  288. 

33.  Where  a  judgment  is  against  heirs  for  lands  descended, 
after  a  plea  of  fully  administered  has  been  found  in  favor  of  the 
administrator,  and  the  execution  issues  against  the  goods  aiid 
chattels,  lands  and  tenements  of  the  heirs,  the  execution  is  void. 
Walker  v.  Marslmll,  7  Ired.,  1. 

34.  Under  the  statute  du-ecting  that,  upon  judgments  against 
infant  heirs,  the  execution  shall  be  stayed  twelve  months,  the 
guardian  of  the  infants  has  a  discretion  to  waive  the  stay,  an^^ 
permit  the  execution  to  issue  instanier,  and  the  sheriff  is  bound 
to  proceed  under  the  execution.     Heath  v.  Latham,  7  ired.,  10. 

35.  Where  the  plea  of  fully  administered  is  found  in  favor  of 
the  administrator,  and  upon  a  sci.  fa.  against  the  heirs,  they  come 
in  and  plead  that  the  administrator  has  assets,  it  icas  held  that, 
■upon  the  trial  of  the  issue  upon  that  plea,  the  hen-s  may  give  ev- 
edeuce  of  any  assets  received  by  the  administrator,  either  before 


678  HEIRS.. 

/< 

or  after  tlie  trial  of  tlie  original  suit,  and  up  to  the  time  of  tlie 
plea  pleaded  to  the  sci.  fa.     Carrier  v.  Hampton,  11  Ired.,  307. 

oG.  The  county  court,  on  the  petition  of  a  guardian  of  a  cer- 
tain infant,  passed  the  following  order:  "Ordered  that  he,  the 
said  W.  B.,  guardian,  sell  the  land  of  the  said  deceased  T.  H.,  or 
so  much  thereof  as  will  be  sulficient  to  discharge  the  debts,"  it 
was  held  that  this  order  was  unauthorized  and  void,  and  of  course 
that  a  purchaser  under  it  acquired  no  title.      Bucket  v.  Shnner, 

11  Ired.,  431.  . 

37.  Til  ough  in  the  case  of  a.  J?.. fa.  for  the  sale  of  the  lands  of  a  de- 
ceased debtor,  the  heirs  should  be  named,  yet  this  is  not  neces- 
sary when  the  writ  is  a  ve7id.  expo.,  the  land  having  been  ascer- 
tained bv  the  levy  and  return  of  a  constable.     JSjiiith  v.  Bryan, 

12  [red.,  11. 

38.  The  question  who  are  the  heirs  of  a  deceased  person  is  one 
of  law  to  be  decided  by  the  conrt,  and  not  of  fact  to  be  left  to 
the  jury.     Bradford  v.  JEnui7i,A2  Ired.,  291. 

39.  Jn  a  proceeding  by  sci.  fa.  against  heirs  to  subject  the  real 
assets  of  a  deceased  debtor,  any  one  of  the  heirs  can  tender 
a  collateral  issue  to  the  administrator,  and,  if  it  found  against 
the  administrator,  the  creditor  would  have  execution  against 
him  for  the  sum  thus  found  in  his  hands,  which  would  necessarily 
operate  to  the  exoneration  pro  to??toof  allthe  real  estate  descended. 
Carrier  v.  Hampton,  13  Ired.,  436. 

40.  A  sale  of  land  by  a  guardian,  under  an  order  of  the  coun- 
ty court,  which  was  made  without  the  court  ascertaining  that 
there  were  debts  of  the  ward  making  the  sale  necessary, 
and  wliich  did  not  designate  with  certainty  the  land  intended  to 
])e  sold,  is  void,  and  the  purchaser  acquires  no  title.  Spridll  v. 
Davenport,  3  Jones,  42. 

41.  An  order  of  the  county  court,  authorizing  a  guardian  to 
sell  the  land  of  his  ward,  under  the  act  of  1789,  Eev.  Stat.,  ch. 
63,  sec.  11,  must  find  and  adjudge  that  there  are  debts  against 
the  ward,  which  render  a  sale  necessary;  but  the  amoimt  of  the 
debts,  to  whom  due,  or  other  particular  description,  is  not  essen- 
tial to  the  validity  of  the  order.  Pendleton  v.  Trnehlood,  3  Jones, 
96.     (See  Kev.  Code,  ch.  54,  sec.  34.) 

42.  An  order  "  to  sell  the  land  of  the  ward  named  in  the  pe- 
tition, adjoining  the  lands  of  J.  B.  and  others,  containing  about 
one  hundred  and  ten  acres,"  is  a  sufficient  specification  of  the 
land  under  the  act,  when  it  appeared  that  the  ward  had  no  other 
land.     Hrid. 

43.  AVhat  constitutes  an  heir  at  law  is  strictly  a  question  of 
law;  but  the  facts,  on  which  the  question  ari-ses,  must  be  left  to 
the  jury.  Hence,  it  is  proper  to  leave  it  to  them  to  say,  from  the 
Testimony,  whether  a  particular  person  died  without  children, 
before  the  act  of  1784,  and  whether  anotb-ier  was.  his.  eldest 
jaephew.     ErnuM  v.  Whitford,.  3  Jones^  474.. 


HEIRS.-  679- 

44.  The  land  of  an  infant  can  be  sold  by  an  order  of  the  county 
court  only  for  the  debt  of  his  ancestor,  and  not  for  his  own  debr. 
and,  to  inake  the  sale  valid  under  an  order  to  sell  for  the  debt  of 
his  ancestor,  there  must  be  an  adjudication  of  the  court  that 
there  was  a  debt  of  the  ancestor  against  the  estate  of  the  peti- 
tioner's ward.     Cqfjidd  v.  McLean,  4  Jones,  15. 

45.  Where  a  petition  to  sell  lands,  by  a  guardian,  alleged  that 
there  was  a  debt  of  the  ancestor  of  his  ward,  for  which  he  was 
liable  as  heir,  and  the  land  was  described  by  calling  for  coter- 
minous tracts,  and  the  court  adjudged,  upon  the  testimony  of  a 
competent  witness,  that  the  facts  of  the  petition  were  true,  and 
made  an  order  to  sell  the  land,  it  was- held  that  the  sale  was  good. 
Bryan  v.  Manning,  G  Jones,  3o4. 

46.  Where  the'  guardian  of  one  of  two  joint  owners-  of  land 
petitioned  for  the  sale  of  the  whole  of  it,  without  noticing  the 
existence  of  the  other  tenant  in  common,,  it  was  hdd  that  the 
sale  was  good  as  to  one-half  the  land,  and  the  purchaser,  though 
taking  a  deed  for  the  whole,  acquired  title  to  only  one-half,  as 
tenant  in  common  with  the  atlier  owner.     Ibid. 

47.  When  an  ancestor  dies  intestate,  his  heirs  take  by  posi- 
tive law,  and  the  course  of  descents  cannot  be  altered  by  words 
in  a  deed  excluding  particular  heirs,  or  by  any  agreement  of  par- 
ties.    Cannon  v.  Noivell,  6  Jones,  43G. 

48.  There  is  no  presumption  of  law,  that  a  person,  bearing  the 
same  name  with  one  of  the  sons  of  a  deceased  owner  of  land,  is 
the  heir,  or  one  of  the  heirs,  of  such  deceased  owner;  but  the 
question  of  identitj'^  is  one  of  fact,  to  be  detei-mined  by  the  jury 
upon  the  concomitant  circumstances,  such  asths  identity  of  name, 
residence  of  the  claimant,  and  that  of  other  members  of  the 
family,  the  price  paid  for  the  land  compared  with  its  value,  and 
the  facility  with  which  the  ixlentity  might  be  proved,  if  it  ex- 
isted, and  other  circumstances.     Freonanr.  Loftis,  6  Jones,  524. 

49.  The  purchaser  of  land,  sold  under  an  order  of  court  for 
the  payment  of  debts  of  the  deceased,  on  the  petition  of  the  ad- 
ministrator, who  was  also  the  sheriff  of  the  county,  and,  as  such, 
served  the  notices  on  the  heirs  at  law,  loas  held  not  to  be  affected 
by  such  irregularity,  nor  by  the  fact  that  the  petition  had  not 
been  sworn  to,  he  not  being  a  party  to  the  proceeding.  Overton 
V.  Crawford,  7  Jones,  415. 

See  (Execution — Of  void  and  irregular  executions,  and  pro- 
ceedings to  set  them  aside,  13.)  (Executors  and  Administra- 
tors— Of  their  liability  to  creditors,  &c.,  32.)  (rludgment — Of 
judgments  against  executors,  administrators  and  heirs,  1.) 
(Judgment — Of  irregular,  void  and  erroneous  judgment,  11.) 
(Justices  of  the  Peace — Of  their  jurisdiction,  judgment  and  exe- 
cution, 71-72.)  (Limitations — As  to  real  estate,  16.)  (Plead- 
ing— Oi  scire  faciaa,  and  the  pleadings  thereon,  3-7.) 


•680  HIGHWAY, 


HIGHWAY. 

1.  By  the  act  of  1784,  the  interposition  of  a  jury  is  necessary 
in  the  laying  out,  altering  or  changing  of  roads ;  but  in  deciding  in 
the  first  instance  whether  there  shall  be  a  highway  in  a  particu- 
lar section  of  the  county,- or  in  discontinuing  one  which  is  use- 
less, the  jury  have  nothing  to  do,  the  whole  power  l>eing  given 
to  the  court.  Carr  v.  Hairstoji,  ICar.  LawRepos.,  249,  (20.)"^  (See 
Rev.  Code,  ch.  101,  sees.  1,  2.) 

2.  The  county  courts  of  two  adjoining  counties  having  been 
authorized,  by  act  of  assembly,  to  appoint  commissioners  to  lay 
out  a  road,  and  one  J.  H.  having  been  authorized  to  erect  toll 
g-ates  on  it  and  to  take  tolls,  the  report  of  the  commissioners,  as 
to  the  discharge  of  their  duty,  was  set  aside,  because  the  person, 
across  whose  land  the  road  was  laid  out,  had  not  had  notice  of 
their  proceeding.     Saicyer  v.  Hamilton,  1  Murph.,  253. 

3.  The  overseer  of  a  public  road  is  subject  to  indictment,  if  he 
neglect  to  keep  up  sign  boards,  as  directed  by  the  act  of  1784. 
State  V.  jsicholsoj},  2  Murph.,  135.     fSecRev.   Code,  ch.  34,  sec. 

,39,  and  ch.  101,  sec.  18.) 

4.  An  overseer,  of  a  public  road  must  be  served  with  notice  of 
his  appointment  ten  davs.  before  he  is  liable  to  be  indicted.  IState 
V.  'Everitt,  2  Car.  L.  R.,  V)33,  (4301) 

5.  By  act  of  the  legislature,  commissioners  may  be  appointed 
to  inspect  a  turnpike  road,  and  it  may  be  dircted  that,  upon  their 
report,  an  indictment  may  be  instituted  against  the  stockholders; 
and  (m  the  trial  of  the  indictment,  the  evidence  of  the  commis- 
sioners is  admissible  and  sufficient,  if  the  jury  believe  them,  to 
convict  the  proprietors.     State  v.  Hmvorth,  1  Hawks,  346. 

6.  Where  water  was,  bythe  erectioii  of  a  mill,  thrown  upon  a 
highway,  and  the'  former  owner  of  the  mill  had  built  bridges 
over  the  water,  which,  during  his  ownership,  he  repaired,  and 
which  were  also  repaired  by  the  present  owner,  who  did  no 
other  work  on  roads,  it  tvas  held  that  the  present  owner  was  liable 
in  damages  to  a  person  who  was  injured  by  a  defect  in  one  of  the 
bridges,  and  that  the  enquiry  Avas  properly  left  to  the  jury, 
whether  the  mill  or  tiie  road  were  the  more  ancient.  Miilhol- 
lamd  V.  Broivnrig,  2  Hawks,  349. 

7.  Where  the  proprietors  of  a  puljlic  bridge,  in  order  to  draAv 
travellers  from  a  public  ferry,  open  a  private  road,  by  the  per- 
mission of  the  owners  of  the  soil  above  the  ferry,  leading  to  the 
foot  of  the  bridge,  and  erect  a  small  bridge  on  such  private  road 
over  an  intervening  creek,  they  are  not  indictable  for  any  defect 
in  the  small  bridge.     State  v.  Seaivell,  3  Hawks.,  193. 

8.  Where  a  party  appeals  from  the  decision  of  the  county 
..court  laying  off  a  \road  :over  'his  'lands,  and  the  superior  court 


HIGHWAY.  681 

orders  it  to  be  laid  off  according 'to  his  wish,  he  shall  not  pay 
the  costs  of  the  petition.     Harris  v.  Coltraine,  'd  HaAvks.,  312. 

9.  The  twenty  days  previous  notice  of  tlie  filing  of  a  petition 
for  a  public  road  cannot  be  objected,  by  a  person  who  has  come 
forward  and  opposed  the  petitiorj,  continued  the  cause  and  ap- 
pealed to  tlie  superior  court;  because  his  conduct  shows  that  he 
had  ample  notice.     Little  v.  3Iay,  3  Hawks.,  599. 

10.  A  railroad  company  is  a  private  corporation,  its  effects 
and  emoluments  being  private  property,  but  the  road  construc- 
ted by  them  will  be  a  pul^lic  highway.  Davis  v.  Raleigh  and 
Gaston  Railroad  Company,  2  Dev.  and  Bat.,  451. 

11.  In  taking  private  property  for  the  use  of  the  public,  as  for 
a  public  highway,  the  legislature  is  not  restricted  to  a  mere 
easement  in  the  property,  but  may  take  the  entire  interest  of  the 
individual,  if,  in  the  opinion  of  the  legislature,  the  public  exi- 
gency requires  it.     Ihid.  ^ 

12.  If  a  road  be  established  as  a  highway  by  an  eiToneoTis 
judgment  of  the  county  court,  it  will  be  a  nuisance  to  obstruct 
it,  until  the  judgment  is  reversed.  It  is  enough  that  the  way 
obstructed  is  a  public  road  de  facto,  to  constitute  the  obstruction 
of  it  a  public  nuisance.  But  where  the  proceedings  to  change  a 
road  state  no  road  as  having  been  prepared;  nor  describe  where 
the  altered  road  is  to  run,  except  that  it  is  to  be  brought  nearer 
a  particular  house;  and  the  prayer  is  only  that  an  order  may  be 
made  "  for  turning  the  road,"  and  then  an  entry  appears  that 
"  said  report  Avas  confirmed  and  duly  entered  of  record,"  there 
is  no  sufficient  judgment  for  establishing  the  road  as  altered, 
and  it  is  no  nuisance  to  obstruct  it.  State  v.  Spainlwui\  2  Dev. 
and  Bat.,  547. 

13.  In  a  petition  to  turn  a  road  under  the  act  of  1834,  it  must 
appear  that  the  road  proposed  to  be  changed,  as  well  as  that  of- 
fered to  be  substituted,  is  wholly  upon  the  land  of  the  peti- 
tioner; the  freeholders  must  also  be  sworn,  and  the  overseer 
have  notice.     Ibid.     (See  Eev. 'Code,  ch.  101,  sec.  6.) 

14.  The  common  law  mode  of  creating  and  establishing  a 
public  highwav  is  not  repeale     by  any  of  our  acts  of  assembly. 

Woolard  v.  McGullough,  1  Ired.,  432. 

15..  The  ii&tir  of  a  road  as  a  public  highway  for  twenty  years, 
Avill,  under  the  circumstances  of  a  case,  authorize  a  jury  to  pre- 
sume a  dedication  of  the  road,  by  the  proprietors  of  the  soil,  to 
the  use  of  the  public.     Ihid. 

16.  Where  a  road  is  opened  by  an  order  of  the  county  court, 
according  to  law  in  every  respect,  except  that  no  damages  were 
assessed  by  the  jury  to  the  owners  of  the  land,  none  but  those 
owners  can  impeach  the  order  for  that  cause.     Ihid. 

17.  An  overseer  of  a  public  road  can  require  no  hands  to  work 
on  his  road,  unless  they  live  within  a  district  whieh  has  been 


682  HIGHWAY. 

designated  for  him  by  the  county  coiu't,.  or  unless  they  have 
been  specially  assigned  by  the  court  to  work  on  his  road.  Ihid. 
IS.  When  a  road  has  been  laid  off  by  order  of  a  county  court, 
and  the  jury  have  returned  a  report  which  has  been  confirmed 
and  an  appeal  taken  to  the  superior  court,  it  is  too  late  to  take  ex- 
ceptions to  the  jury.  The  objection  should  have  been  made  in 
the  county  court  upon  the  return  of  the  jury,  by  a  motion  to 
quash  the  proceedings  of  the  jury.  After  a  decision  of  the 
county  court  upon  the  merits,  the  superior  could,  upon  an  ap- 
peal, determine  oidy  upon  the  merits.  Fiercy  v.  Morris,  2  Jrecl, 
168. 

19.  In  a  petition  to  turn  or  change  a  public  road,  it  must  be 
alleged  that  the  new  road  is  necessary,  or  would  be  more  usefvd 
to  the  public ;  otherwise  the  petition  will  be  dismissed.  Leath 
V.  Summers,  3  Ired.,  108. 

20.  The  mere  appointment  of  an  overseer  and  assignment  of 
hinds  to  a  supposed  roacl,  by  the  county  court,  are  not  ^jer  se  a 
judicial  determination  that  a  public  road  be  laid  out  where  none 

before  existed.  And  any  inhaWtant  so  a,ssigned,  when  sued  for 
the  penalty  incurred  for  refusing  to  work  on  such  road,  and  the 
overseer  iu dieted  for  not  haviiig  the  road  in  order,  may  show 
that  in  fact  there  is  no  such  public  road.  Baker  v.  Wilson,  3 
Ired.,  168. 

21.  Where  an  individual  appropriates  land  for  a  public  high- 
way, much  less  time  than  twenty  years  will  suffice  to  make  it 
a  public  road;  for  it  is  rather  the  intention  oi  the  owner,  than 
the  length  of  time  of  the  user,  which  must  determine  the  fact  of 
dedication.  But  a  county  court  cannot  dedicate  or  appoint  a 
public  road,  in  any  other  manner  than  that  authorized  by  law. 
Stafe  V.  Marble,  4  Ired.,  318. 

22.  Where  a  road  has  been  used  by  the  public  as  a  highway 
for  twenty  years,  and  there  is  no  evidence  how  this  user  com- 
menced, a  presumption  of  law  arises  that  this  road  has  been  laid 
off  and  established  as  a  public  road,  by  due  course  of  laAv;  but  a 
possession  or  2iser  for  less  time  than  twenty  years  will  not  raise 
this  presumption.     Ibid. 

23.  There  may  be  a  public  road  de  facto,  and  the  only  person, 
who  can  question  the  right  to  such  a  road,  is  the  owner  of  the 
land;  and  the  owner  can  only  be  bound  by  a  proceeding  against 
him  according  to  the  law  of  the  land,  or  by  an  user  for  twenty 
years,  from  which  such  proceedings  will  ordinarily  be  pre- 
sumed.    Ibid. 

24.  So,  also,  no  presumption  of  a  legal  authority  to  erect  a  gate 
across  a  public  road  can  arise,  in  a  less  time  than  twenty  years, 
from  the  actual  erection  of  the  gate.     Ibid. 

25.  Where  a  road  has  been  used  by  the  public  for  twenty 
years' without  obstruction  or  hindrance,,  a  grant  from,  the  own» 


HIGHWAY.  683 

ers  of  the  land  over  which  the  road  passes  may  be  presumed. 
State  V.  Hunter,  5  Ired.,  3G9. 

20.  The  county  court  has  no  authority  to  discontinue  any  pub- 
he  road,  but  upon  the  petition  of  one  or  more  persons,  filed  in 
the  court,  and  the  other  necessary  proceedings  prescribed  in  the 
act;  and  any  order  for  discontinuing  a  pubhc  road,,  made  other- 
wise than  as  the  act  directs,  is  Toid.  State  v.  SJaiford,  6  Ired., 
162.     (See  Eev.  Code,  ch.  101,  sec.  2.) 

27.  The  county  court  has  full  power  to  order  the  laying-  out  of 
public  roads,  but  none  to  lay  them  out,  as  that  power  is  given  to 
a  jury.      Welch  v.  Piercy,  7  Ired.,  365. 

28.  The  county  court  has  the  power  to  decide  whether  the 
public  convenience  requires  the  layiug  out  of  aroad,  and  to  or- 
der a  jury  for  the  purpose  of  laying  it  out;  but  it.  has  no  power, 
except  as  to  the  termini  to  direct  the  jury,  or  any  one  else,  ]Mv 
it  shall  run,  that  being  the  exclusive  province  ol  the  jury,  their 
verdict  being,  of  course,  subject  to  the  judgment  of  the  court, 
whether  it  shall  be  received  or  not.     Ibid. 

29.  An  order  of  the  court  directing  how  a  road  shall  be  run  and 
opened,  does  not  justify  an  overseer  who  acts  under  it,  and  he 
is  liable  to  an  action  by  the  jjarty  aggrieved.     Ibid. 

30.  Where  a  person  resides  in  another  state  during  the  great- 
er part  of  tlie  year,  but  has  a  domicil  in  this  state,  in  which  he 
also  resides  three  or  four  months  of  the  year,  during  which  he 
keeps  slaves  here,  he  is  liable,  during  the  time  he  resides  in  tliis 
state,  to  be  required  to  send  such  hands  to  w-ork  on  the  public 
road,  as  are  required  by  the  act  of  assembly  on  that  subject.  But 
persons  merely  passing  through  the  state,  or  visiting  it  for  pur- 
poses of  profit  or  pleasure,  and  remaining  for  days,  weeks,  or 
even  months,  without  having  any  fixed  home  here,  are  not  per- 
sons whom  the  overseers  of  the  roads  are  authorized  to  summon 
as  being  witiiin  their  districts.  Cantrell  v.  Pinhiey,  8  Ired.,  436. 
(See  Eev.  Code,  ch.  101,  sec.  9.) 

31.  An  overseer  of  a  public  road  has  no  right  at  his  discretion 
to  widen  the  road»  as  this  can  only  be  done  by  a  jury  ruider  the 
direction  of  the  county  court.     Small  v.  Eason  11  Ired-,    94. 

32.  In  an  action  to  recover  a  penalty  for  not  working  on  a 
road  in  Wilkes  county,  laid  off  by  commissioners  under  the  act 
of  1846,  ch.  100,  it  is  necessary  to  show  that  the  commissioners 
were  duly  sworn  as  the  act  directs.  Calvert  v.  Whittington,  11 
Ired,,  278. 

33.  If  the  w^eather  be  so  bad  as  to  prevent  an  overseer  of  a 
road  from  working  on  it,  or  to  render  unavailing  any  work  he 
might  do,  he  ought  to  be  excused.     State  v.  Smcdl,  11  Ired.,  571. 

34.  Where  a  charter  has  been  granted  for  a  turnpike  road,  and 
the  road  has  been  opened,  the  county  court  has  no  right  to  con- 
vert it  into  a  public  road,  unless  the  charter  has  been  duly  sur- 
rendered, or,  from  a  non-user,  foe  twenty  years,,  a  dedication  to 


68^4  HIGHWAY. 

tlie  public  may  be  presumed.     And,  even  in  such  a  case,  the  roafi 
can  only  be  made  a  public  one  in  the  manner  prescribed  by. 
statute.     The  mere  appointment  of  an  overseer  will  not  be  suffi- 
cient for  that  purpose.     State  v.  Johnson,  11  Ired.,  647. 

35.  It  setms  ihsii  t\\Q  establishment  of  a  highway  may  be  in- 
ferred b}^  the  jury  from  the  use  of  it  as  such  for  twenty  years, 
although  the  time  and  manner  of  the  wseris  shown  to  have  been 
under  imperfect  and  irregular  legal  proceedings.  State  v.  Card- 
iveU,  Busb.,  245. 

36.  By  an  appeal  from  the  judgment  of  the  county  court  upon 
a  petition  to  lay  out  a  public  road,  the  superior  court  acquires 
full  possession  of  the  cause,  with  power  to  proceed  to  a  final 
judgment  and  hearing.  Therefore,  when  the  county  court  dis- 
missed such  a  petition,  and  the  petitioners  appealed,  it  2cas  held 
tlmt  the  judge  of  the  superior  court,  being  of  opinion  that  the 
prayer  of  the  petition  ought  to  be  granted,  properly  ordered  a 
jury  to  lay  out  the  road,  instead  of  awarding  a  procedendo  to  the 

county  court.     Shqffner  v.  Fogleman,  Busb.,  280. 

37.  Highways  are  laid  out  for  public  convenience,  and,  there- 
fore, should  not  be  altered,  unless  the  interest  of  the  public  re- 
quire it.     Kenedy  v.  Erwin,  Busb.,  387. 

38.  The  power  to  exempt  hands  from  working  on  the  public 
roads  is  restricted  to  a  court  consisting  of  seven  justices.  Forhes 
V.  Hunter,  1  Jones,  231. 

39.  An  overseer  of  a  public  road  is  liable,  in  an  action  on  the 
case,  for  special  damages  -sustained  by  a  person,  on  account  of 
the  road's  being  out  of  repair.     Hathawmj  v.  Hinton,  1  Jones,  243. 

40.  The  establishment  of  a  road  district,  or  the  assignment  of 
hands  to  work  on  a  public  road,  can  ordy  be  made  by  an  order 
of  the  county  court,  and  no  acquiescence  in  the  authority  of  an 
overseer,  by  working  under  him  upon  a  road,  can  amount  to  a 
presumption  that  the  district  was  laid  off,  or  that  the  person  thus 
acquiescing  had  granted  the  power  to  another  of  compelling  him 
to  work  on  the  road.     Tarldnrjton  v.  McRae,  2  Jones,  47. 

41.  It  is  irregular,  upon  the  hearing  of  exceptions  to  the  report 
of  a  jury  ordered  to  lay  off  a  public  road,  for  the  court  to  con- 
sider of  the  propriety  of  such  order.  Anders  v.  Anders,  4  Jones, 
242. 

42.  Where  it  was  shown  that  a  road  had  been  opened  in  con- 
sequence of  an  award  of  a  church,  upon  a  controversy  between 
two  of  its  members,  for  which  the  person  who  wanted  the  road 
was  to  pay  the  owner  of  the  land  a  price  in  money,  and  that  such 
person  had  used  the  road,  as  of  right,  for  more  than  twenty 
years,  it  •ivas  held  that  jyrima/acie  it  was  but  a  private  way,  and 
that  a  long  and  general  use  of  it  by  the  public,  in  the  absence  of 
any  proceeding  in  court  to  have  it  laid  out,  and  overseers  ap- 
pointed over  it,  was  not  sufficient  to  change  it  into  a  public  roaci 
Davis  V.  Ramsey,  5  Jones,  .236. 


HIGHWAY.— homicide:  .  685" 

4S.  A  roadonly  one  mile  long,  and  from  ten  to  fifteen  feet 
^vide,  leading  from  a  highway  \o  a  church,  and  having  been 
used  by.  tlie  neighborhood. for  sixty  years,  in  going  to  and  from 
the  church,  and  which  connects  with  a  country  road  leading  to 
a  mill  and  a  railroad  station,  but  which  had  never  been  under 
the  charge  of  an  overseer,  nor  worked  as  a  public  highway,  is 
not  a  public  high\vay,-so  as  to  subject. a  person  to  an  indictment 
for  ob.structing'it.     State  v.  3IcJ)anieI,  8  Jones,  284- 

44.  The  Eev.  Code,  ch.  101,  sec.  15,  gives  to  overseers  of  roads 
power  to  cut  poles,  &c.,  on  any  land  adjoining  his  section  of  the 
road,  for  the  purpose  of  making  causeways,  &c.,  and  if  he  act 
in  good  faith,  he  is  not  confined  to  the  land  immediately  adja- 
cent to  the  spot  w^here  the  causeway,  &c.,  is  to  be  made.  Col- 
lins r.  Creecy,  8  Jones.  333. 

45.  The  inference,  from  evidence  tending  to  show  that  a  M'ay 
over  and  through  a  man's  land  is  a  public  road,  may  be  rebutted 
by  evidence  of  "/lor.  user  for  more  than  twenty  years.  Burgwyn 
v.  Lockhart,  1  Winst.,  269. 

See  (Common  Schools,  3.)  (Costs— In  civd  proceedings,  when- 
the  plaintiff  pays  costs,  12.)  (Evidence— Records  of  courts;  the 
proof  and  effect  of  them,  24.)  (Indictment — In  what  cases  an 
nidictment  will  lie,  15-57-B7-73-83.)  (Indictment— Form  and 
matters  relating  thereto,  117.;     (Penal  Statutes,  8-9.) 


HOMICIDE. 

1.  A  person,  who  was  violently  beaten  and  abused,  made- 
his  escape,  ran  to  his  house  eighty  yards  off",  got  a  knife,. ran 
back,  and  upon  meeting  the  deceased  stabbed  him,  it  seems  he 
was  only  guilty  of  manslaughter.  If,  upon  the  second  meeting, 
the  prisoner  had  disguised  the  fact  of  having  a  weapon,  for  the 
purpose  of  inducing  the  deceased  to  come  within  his  reach,  the' 
killing  would  have  been  murder.  The  distinction  between  mur- 
der and  manslaughter  elaborately  explained.  State  y.  N orris, 
1  Hay.,  429,  (495^ 

2.  If  a  free  servant  refuse  to  obey  the  commands  of  his  mas- 
ter, and  the  master  endeavor  to  exact  obedience  by  force,  and 
the  servant  offer  to  resist  by  force,  and  the  master  kill,  it  is 
neither  murder  nor  manslaughter;  a  A r^ior,  the  law  is  so  in 
the  case  of  a  slave.     State  v.  Weaver,  2  Hay.,  54,  (216.) 

3.  If  a  prisoner  be  convicted  of  manslaughter,  and  the  court 
think  he  is  a  dangerous  man,  it  may  order  him  to  give  secu- 
rity for  his  good  behaviour  for  five  years.     State  v.  Parish,  2. 
Hay.,  73,  (240.  X 


686  HOMTCIDE. 

4.  If  a  slave  violoTitly  shove  a  white  man  so  'that  lie  falls,  or 
is  iu  damger  of  falling,  and  he  rises  and  immediately  shoots  the 
slave,  the  killing  is  manslaughter.  State  v.  Piner,  2  Hay.,  79, 
(247.) 

5.  The  statute  of  21st  James  1st,  ch.  27,  being  repealed  in  this 
state,  the  concealment  'of  the  birth  of  a  base  begotten  child  could 
not  be  given  in  evidence,  as  a  strong  presumption  of  the  murder 
of  the  child  by  its  mother.     State  v.  Jeffreys,  -3  Murph.,  480. 

6.  One  convicted  of  wilfully  killing  u  slave,  with  malice  pre- 
pense, is  guilty  of  murder,  and  not  entitled  to  benefit  of  clergy. 
State  V.  Scott,  1  Hawks,  24. 

7.  If,  after  mutual  alter^cation  and  abuse,  one  of  the  parties 
strike  the  other  a  violent  blow,  and  they  are  separated  fbr  a 
minute,  and  the  stricken  man  suddenly  stab  the  other  with  a 
knife  which  he  had  not  before  shown,  it  will  be  a  case  of  man- 
vslaughter  and  not  murder,  provided  death  ensues.  State  v. 
Yarborongh,  1  Hawks,  78. 

8.  Necessity  distinguishes  between  manslaughter  and  excusa- 
ble homicide,  and  not  between  manslaughter  and  murder.     Ihid. 

9.  The  whole  design  of  the  act  of  1817,  to  punish  the  homi- 
cide of  a  «lave,  was  to  make  it  manslamjMer,  and  to  punish  it  as 
such ;  it  does  not  go  further,  and  determine  the  degrees  of  the 
liomicide,  but  leaves  them  to  be  determined  by  the  common  liiw. 
State  V.  Tackett,  1  Hawks,  210. 

10.  At  common  law,  and  between  white  persons,  a  sligld  blow 
will  not  excuse  a  homicide ;  nor  will  mere  words  extcmtate  it  to 
manslaughter.  A  blow  amounts  to  a  legal  provocation,  though 
it  does  not  threaten  death ;  and  if  he,  on  whom  an  assault  is  made 
with  violence,  or  circumstances  of  indignity,  resent  it  immediate- 
ly, by  killing  the  aggressor,  and  act  therein  in  heat  of  blood, 
and  under  that  provocation,  it  is  but  manslaughter.     1  bid. 

11.  The  general  rule  may  be  laid  down,  "that  words  are  not, 
but  blows  are,  a  sufficient  provocation  to  lessen  the  crime  of 
homicide  to  manslaughter."  From  this,  there  are  a  few  excep- 
tions depending  upon  peculiar  circumstances.     Ihid. 

12.  But  it  exists  in  the  very  nature  of  slavery,  that  the  rela- 
tion between  a  white  man  and  a  slave  is  different  from  that  be- 
tween free  persons;  and  therefore  many  acts  will  extenuate  the 
homicide  of  a  slave,  which  would  not  constitute  a  legal  provoca- 
tion if  done  by  a  white  person.     Ibid. 

13.  A  killing  on  a  sudden  quarrel,  to  avoid  a  great  bodily 
harm,  is  a  homicide  under  circiimstances  of  legal  provocation, 
and  though  such  circumstances  cannot  justify  or  excuse  the  act, 
yet,  on  account  of  human  frailty,  it  shall  be  deemed  no  more  than 
manslaught<ir.     State  v.  Roberts,  1  Hawks,  349. 

14.  A  well  grounded  belief,  that  a  known  felony  is  about  to 
be  committed,  will  extenuate  a  homicide  committed  to  prevent 


HOMICIDE.  G87 

the  felony,  but  not  a  homicide  committed  in  pursuit,  by  an  indi- 
vidual, of  his  OT\-n  accord.     State  v.  Bntherford,  1  Hawks,  457. 

15.  If  death  do  not  take  place  within  a  year  and  a  day  of  the  . 
time  when  a  wound  was  inflicted,  the  law  draws  the  conclusion 
that 'it  was  not  the  cause  of  the  death,  and  this  cannot  be  con- 
tradicted.    State  V.  Orrell,   1  Dev.,  IcUrL 

16.  A  homicide  may  be  justified  when  it  takes  place  to  prevent 
a  threatened  felony,  but  not  when  inflicted  as  a  punishment  for 
one  already  committed.     State  v.  Roane,  2  Dev.,  58._ 

17.  To  justify  the  homicide  of  a  felon  in  endeavoring  to  arrest 
him,  the  slayer  must  show  not  only  a  felony  actually  committed, 
but  also,  that  he  avowed  his  object,  and  that  the  felon  refused 
to  submit,  and  that  the  killing  was  necessary  to  make  the  arrest. 

Ihiil 

18.  Provoking  language  does  not  justify  a  blow,  and  if  one  be 
struck  with  an  instrunient  calculated  to  produce  death,  the 
slayer  is  guilty  of  murder.     State  v.  MernlU  2  Dev.,  269. 

19.  Malice  is  presumed  from  the  nature  of  the  instrument,  and 
from  the  want  of  legal  provocation,  and  it  is  a  matter  of  indiffer- 
ence whether  the  temper  of  tlie  prisoner  be  mild  or  violent,  and 
it  is  erroneous  to  permit  evidence  to  be  given,  by  the  State,  of 
such  temper.     Ihid. 

20.  If  an  apprentice  fly  from  the  chastisement  of  his  master, 
who  pursues  him  with  unlawful  violence,  and,  in  the  pursuit,  is 
killed,  the  apprentice  is  not  guilty  of  murder.  So  of  a  person 
guilty  of  a  misdemeanor,  flying  from  an  officer.  State  v.  Will, 
1  Dev.  and  Bat,  121. 

21.  It  is  not  the  criterion  of  a  legal  provocation  that  the  offen- 
sive act  is  an  indictable  oflence.     Ihid. 

22.  If  one  man  assails  another,  and  is  about  to  commit  an 
unauthorized  act  of  violence  upon  him,  and  a  third  person  inter- 
poises  to  prevent  it,  and  is  killed  by  the  assailant,  it  is  murder. 
State  V.  Benton,  2  Dev.  and  Bat.,  196. 

23.  Where  one  goes  to  the  house  of  another  in  a  peaceable 
manner,  Avithout  offering  or  threatening  violence  to  his  person  or 
dwelling,  and,  upon  being  ordered  off  and  not  going  immediately, 
is  killed  by  the  owner  of  the  premises,  the  slayer  is  guilty  ©r 
murder,  although  it  be  proved  that  he  had  previously  forbidden 
the  deceased  from  coming  on  his  premises.  State  v.  Smith,  3 
Dev.  and  Bat.,  117. 

24.  It  is  ordinarily  true,  that  an  actual  intent  to  kill  is  involved 
in  the  idea  of  murder.  But  it  is  not  always  so.  If  great  bodily 
liarm  be  intended,  and  that  can  be  gathered  from  the  nature  of 
the  means  used,  or  oMier  circumstances,  and  death  ensue,  tho 
party  will  be  guilty  of  murder,  although  he  may  not  have  inten- 
ded death.     State  v.  Hoover,  4  Dev.  and  Bat.,  365. 

25.  When  a  man  makes  an  assault,  which  is  returned  with  a 
violence  manifestly  disproportionate  to  that  of  the  assault,  the 


688  HOMICIDE.. 

character  of'tlie  combat  is  essentially  chaTiged,  and  the  assault-- 
ed  becomes  in  his  turn  the  assailant;  and  if  the  person  who 
made  the  first  assault,  in  the  transport  of  passion  thus  excited, 
and  without  previous  malice,  kill  his  ad'v'^rsary,  the  proper  in- 
quiry as  to  the  degree  of  his  guilt  is  not,  whether  he  was  pos-  ■ 
sessed  of  deliberation  or  reflection,  so  as  to  be  sensible  of  what 
he  was  then  about  to  do,  and  intentionally  did  the  act,  but 
whether  a  sufficient  time  had  elapsed  after  the  violent  assault 
upon  him,  and  before  he  gave  the  mortal  wound,  for  passion  to 
subside,  and  reason  to  re-assume  her  sway*  for  if  there  had  not, 
he  would  be  guilty  of  manslaughter  only.  State  v.  Hill^ADev. 
and  Bat,  491. 

26.  If  a  man  assault  another  with  malice  prepense,-  even 
though  he  should  be  driven  to  the  wall,  -and  kill  his  adversary 
there  to  save  his  own  life,  he  is  guilty  of  murder.     Ibid. 

27.  Where  two  persons  have  formerly  fought  on  malice,  and 
are  apparently  reconciled,  and  fight  again  on  a  fresh  quarrel, 
it  shall  not  be  intended  that  they  were  mov^d  by  the  old  grudge, 
unless  it  so  appear  from  the  circumstances  of  the  aflair.     J  bid. 

28.  If  one  began  an  affray,  or  even  if  he  did  not  begin,  but 
was  assaulted  first,. and  then  a  combat  ensued,  he  could  not  ex- 
cuse himself  as  for  killing  in  self  defence,  unless  he  quitted  the 
combat  before  the  mortal  blow  was  given,  (if  the  fierceness  of 
his  adversary  permitted,)  and  retreated  as  far  as  he  might  with 
safety,  and  had  then  killed  his  adversary  of  necessity  to  save 
his  own  life.     Ibid. 

29.-  Words  of  reproach,  or  contemptuous  gestures,  or  the  like 
offences  against  decorum,  are  not  a  sufficient  provocation  to  free 
a  party  killing  from  the  guilt  of  murder,  where  he  uses  a  deadly 
weapon,  or  manifests  an  intention  to  do  great  bodily  harm. 
This  rule,  however,  does  not  obtain  where,  because  of  such  in- 
sufficient provocation,  the  parties  become  suddenly  heated,  ond 
engage  in  mortal  combat,  fighting  upon  equal  terms.     Ibid. 

30.  Although  there  be  a.  legal  provocation,  yet  a  homicide 
will  be  murder,  if  committed  under  such  circumstances  ot  cruelty 
as  manifest  the  thoroughly  wicked  heart.  And  cruelty,  when 
the  fact,^,SYom  which  it  is  to  be  inferred,  all  distictly  appear,  is  an 
inference  of  law,  and,  therefore,  properly  drawn  by  the  court. 
But  where  no  more  is  stated  than,-  that  several  blows  were  struck 
with  a  stick  of  curled  hickory,  of  the  ordinary  size,  and  with  the 
larger  end  thereof,  without  stating  more  of  the  nature  of  those 
blows  than  that  one  of  them  was  mortal,  the  facts  are  not  so  set 
forth  as  to  leave  the  question  as  one  for  legal  inference.  State 
V.  Jarrott,  1  Ired.,  76.  # 

31.  If  the  weapon,  with  which  the  homicide  was  committed, 
were  not  of  the  character  called  deadly,  that  is,  likely  to  produce 
death  or  great  bodily  harm,  the  homicide  would  not  be  murder, 
although  committed  vdtbout  legal  provocation.     And  there  are 


HOMICIDE.  e8& 

many  cases  in  "u-hicli  the  conrt  can  distinctly  see,,  ia-om  the  na- 
ture of  the  instrnme^it  nsed,  whether  it  be  of  a  dearlly  character 
or  not  ;  and  therefore  need  not  that  tlie  jury  should  direct- 
ly find  the  iactfor  their  information.  But  where  it  only  appears 
that  the  weapon  used  was  a  stick  of  curled  hickory  of  the  ordi- 
nary size,  and  that  the  slayer  struck  with  the  larger  end  thereof, 
it  falls  peculiarly  in  the  province  of  the  jury  to  ascertain  wheth- 
er such  a  weapon,  so  used  by  the  slayer,  was  likely  to  produce 
fatal  consequences.     Ibid. 

32.  When  a  deliberate  purpose  to  kill  or  do  great  bodily  harm 
is  ascertaired,  and  there  is  a  consequent  unlawful  act  of  "killing, 
the  provocation,  whatever  it  may  be,  Avhich  immediately  pre- 
cedes the  act,  is  to  be  thrown  out  of  the  case  and  goes  for  noth- 
ing, unless  it  can  be  shown  that  this  purpose  was  abandoned  be- 
fore the  act  was  done.     State  v.  Johnson,  1  Ired.,  354. 

33.  There  is  no  such  thing  in  law  as  the  killing  with  malice, 
and  also  upon  the  furor  brevls  of  passion ;  and  provocation  fur- 
nishes no  extenuation  unless  it  produces  passion.  IMalice  ex- 
cludes passion.  Passion  presupposes  the  abK<ence  of  malice.  In 
law  they  cannot  co-exist.     Hid. 

34.  ^Vhen  the  existence  of  deliberate  malice  in  the  slayer  is 
once  ascertained,  its  continuance,  down  to  the  perpetration  of 
the  meditated  act,  must  be  presumed,  until  there  is  evidence  to 
repel  it.  There  must  be  some  evidence  to  show  that  the  wicked 
purpose  had  been  abandoned.     Ihid. 

35.  Provocation  never  disproves  malice ;  it  only  removes  the 
jjrcsnrnpfion  of  malice,  which  the  law  raises  without  proof  A 
malicious  killing  is  murder,  howeve]-  gross  the  provocation.  Ibid. 

3(x  If  A,  from  previous  angTy  feelings^  on  meeting  with  B, 
strike  him  with  a  whip,  with  a  view  of  inducing  B  to  draw  a 
pistol,  or  believing  he  will  do  so  in  resentment  of  the  insult,  and 
determines,  if  he  does  so,  to  shoot  him  as  soon  as  he  draws,  and  B 
does  di-aw,  and  A  immediately  shoots  and  kills  him,  it  is  a  case 
of  murder.     State  v.  Martin.  2  Ired.,.  101. 

37.  It  isi  not  error  in  the  judge  to  tell  the  jury,  on  a  trial  for 
murder,  that  "if  they  believed  from  the  evidence,  that  the  pris- 
oner had  malice  against  the  deceased,,  on  the  morning  of  the  day 
when  the  killing  occurred,  and  there  Avas  no  evidence  that  sucli 
malice  was  abaiid(jned,.  even  if  the  prisoner  accidentally  fell  in 
Avith  the  deceased,  the  Ojuestion  of  manslaughter  could  not  arise, 
as  the  malice  would  excludeprovocation ;"  it  being  clear,  from  the 
context  of  the  charge,  that  the  malice  spoken  of  was  the  purpose 
to  Mil,' or  do  great  bodily  harm  to  the  deceased.  State  v.  Tilly,  3 
Ired.,  424. 

38.  Although  one  persoii  may  not  go  in  r^eareh  of,  or  lie  in 
wait  for,  another  whom  he  kills,  yet  if  he  have  formed  the  pur- 
pose to  kill  him,  and,withiii  a  short  time  after  forming  and  avow- 
ing such  jwirpose,  he,  duly  armed,  meets  the  other  by  chance 

2* 


690  HOMICIDE. 

whether  in  public  or  in  secret,  and  slays  hii-^  immediately,  there 
is  a  presumption  that  he  did  it  on  the  previous  purpose  and 
grudge,  if  there  be  no  evidence  of  a  change  of  purpose.     Ibid. 

39.  If  one  seek  another  and  enter  into  a  light  with  him,  with 
the  purpose,  under  the  pretense  of  lightiiig,  to  stab  him,  and 
he  do  so  and  kill  him,  it  will  be  clearly  miu'der  in  the  assailant, 
no  matter  what  provocation  was  apparently  then  given,  or  how 
high  the  assailant's  passion  rose  during  tlie  combat;  for  the  mal- 
ice is  express.     State  v.  Love,  4  Ired.,  113. 

40.  In  a  case  of  homicide,  where  it  appeared  that  the  deceased 
had  threatened  the  prisoner  about  three  Aveeks  before,  that  he 
would  kill  him;  that  they  met  in  the  street  in  a  starlight  night 
when  they  could  see  each  other;  that  the  deceased  pressed  for  a 
fight,  but  the  prisoner  retreated  a  short  distance;  that  wdien  the 
deceased  overtook  him,  the  prisoner  stabbed  himivith  some  sharp 
instrument  which  caused  his  deatli,  and  that,  at  the  time  of 
this  meeting,  the  deceased  had  no  deadly  w^eapon,  it  ivas  held  \o 
be  a  case  of  murder.     State  v.  Scott,  4  Ired.,  401). 

41.  In  a  case  like  the  above,  to  mitigate  the  offence  from  murder, 
it  must  appear,  from  the  previous  threats  and  the  circumstaiK-cs 
attending  the  rencountre,  that  tlie  killing  was  in  self-defence. 
lUd. 

42.  Where  the  deceased  intended  only  a  fight  without  weapons, 
and  that  was  known  to  the  prisoner,  and  tlie  prisoner  drew  his  knife 
wuthout  notice  to  the  deceased,  even  if  they  actually  engaged  in 
the  fight,  the  stabbing  of  the  deceased  by  the  prisoner  would  be 
unu'der.     Ihid. 

43.  The  belief,  that  a  person  designs  to  kill  me,  will  not  pre- 
vent my  killing  him  from  being  murder,  unless  he  is  making 
some  attempt  to  execute  his  design,  (jr,  at  least,  is  in  an  appa- 
rent situation  to  do  so,  and  thereby  induces  me  reasonal)ly  to 
think  that  he  intends  to  do  it  immediately.     Ibid. 

44.  On  a  trial  for  murder,  the  question  of  provocation  is  prnjjur 
for  the  decision  of  the  court;  for  whether  certain  facts  amount 
to  a  sufficient  provocation  to  palliate  a  killing  from  nnirder  t(! 
manslaughter,  is  entirely  a  question  of  law.  State  v.  (Jratoyi,  H 
Ired.,  104. 

4;").  When  a  man  is  vnJairfidhj  restrained  of  his  lil)erty,  and 
Jcills  the  aggressor,  the  offence  is  only  manslaughter,  vniless  at- 
teiided  with  circumstances  of  great  cruelty  and  barbarity.  \\n\ 
when  the  restraint  is  upon  one  man  by  another,  so  far  as  to  pre- 
vent the  former  from  doing  what  the  latter  may  lawfully  resist 
his  doing;  and  the  person  restrained  in  that  manner  and  for  tliat 
cause  kills  the  other,  it  is  murder.  Thus,  if  a  husband  use  com- 
pulsion, as  he  may  lawfully  do,  to  regain  the  possession  of  his 
wife  from  one  who,  he  has  reason  to  suspect,  has  committed,  or 
is  about  to  commit,  adultery  with  her,  and  the  husband  be  killed 
in  the  attempt  by  the  wrongdoer,  it  will  be  murder.     Ibid. 


HOMICIDE,  691 

41).  Whether  an  iustruiuent,  by  which  death  is  caused,  if  it  bo 
in  fact  as  described  by  the  testimony':,  be  one  by  which  death 
may  or  may  not  be  probably  caused,  is  ii  question  of  general 
reason,  and  therefore  proper  for  the  court;  and  it'  it  be  doubtful, 
whether  it  Avould  probably  cause  death,  the  court  should  direct 
a  conviction  lor  manslaughter  only.     IbicL 

47.  Nothing-,  short  of  a  husband's  finding  a  man  in  the  very 
act  of  adultery  with  his  Avife,  will  extenuate  the  killing  of  the 
adulterer  from  murder  to  manslaughter.  Hence,  it  is  not  admis- 
sible, because  immaterial,  to  prove  that  the  deceased  had  been 
in  the  habit  of  committing  adidtery  with  the  wife  of  the  pris- 
oner.    State  V.  JoJrit,  S  Ired,,  odd 

48.  Voluntary  drunkenness  Avill  u^ot  excuse,  or  extenuate,  a 
homicide  committed  by  a  man,  otherwise  sane,  while  actino-  un- 
der its  influence.     Ibid 

49.  It  is  perfectly  settled  that  no  Avords  or  gestures,  nor  any 
thing  less  than  the  indignity  of  a  battery,  or  an  assault  at  least, 
Avill  extenuate  a  killing  to  manslaughter;  and,  to  constitute  an 
as.sault,  there  must  he  an  attempt  or  offer  to  strike,  by  one  Avithin 
sti-iking  distance.     State  y.  Barfield,  8  Ired.,  344. 

')( ).  The  question,  Avhether  the  Aveapon,  Avith  which  a  homicide 
has  been  committed,  is  a  deadly  one  or  not,  is  Ibr  the  court,  and 
iiot  for  the  jury.     State  v.  Collin^,;  8  Ired.,  407. 

51.  In  an  indictment  for  homicide,  it  is  the  province  and  duty 
of  the  court  to  inform  the  jury,  upon  the  supposition  of  the 
truth  of  the  facts,  as  being  agreed  on  or  found  by  the  jury,  Avhat 
the  degree  of  homicide  is.     ibtate  v.  Hildrttli,  0  Ired.,  4:2ii.' 

b'l.  Where  persons  hght  on  fair  terms,  and  after  an  interval, 
bloAvs  having  been  given,  a  party  draAvs,  in  the  heat  of  blood,  a 
deadly  instrument,  and  inflicts  a  mortal  injury,  it  is  manslaugh- 
ter only ;  but  if  a  party  enter  a  contest,  dangerously  armed,  and 
liglit  under  an  unfair  adA^antage,  though  mutual  blows  pass,  it 
is  not  manslaughter,  but  murder.     Ihtd. 

b'6.  If  one,  Avho  is  present  and  sees  that  a  felonious  homicide 
is  about  to  he  committed,  in  no  manner  interferes,  he  does 
not  thereljy  participate  in  the  felony  committed.  Every  person 
may,  upon  such  an  occasion,  interfere  to  prevent,  if  he'can,  the 
perpetration  of  the  felony,  but  he  is  not  bound  to  do  so  at  the 
peril,  otherAvise,  of  partaking  of  the  guilt.  It  is  necessary,  in 
order  to  make  him  an  aider  and  abetter,  that  he  should  do  or 
say  something,  showing  his  consent  to  the  felonious  purpc.se. 
and  contributing  to  its  execution.     State  v.  Hildreth,  9  Ired.,  440.' 

54.  Upon  a  quarrel,  one  of  the  parties  retreated  about  flfty 
yards,  apparently  with  a  desire  of  avoiding  a  conflict;  the  other 
party  pursued  Avitli  his  arm  uplifted,  and  Avhen  he  reached  his 
opponent,  stabbed  and  killed  him,  the  latter  luiAnng  stopped  and 
first  struck  Avith  his  flst.  It  was  held  that  this  was  a  clear 
case  of  murder.     State  v.  Hoiuell,  D  Ired  485. 


692  HOMICIDE. 

55.  Whenever  there  is  a  reasonable  ground  to  beheve  that  there 
is  a  design  to  destroy  life,  to  rob,  &c,,  a  killing  to  arrest  such 
design  is  justifiable;  but  it  is  for  the  jury,  and  not  for  the  pris- 
oner, to  judge  of  the  reaso-nableness  of  such  apprehension.  State 
V.  Harris,  1  Jones  190. 

56.  Whore  the  wound  is  adequate  and  calculated  to  produce 
death,  it  is  no  excuse  to  show  that  had  proper  caution  and  atten- 
tion been  given,  a  recovery  might  have  ensued,  Neglect  or  mal- 
treatment will  not  excuse,,  except  in  cases  where  doubt  exists  as 
to  the  character  of  the  wound.     State  v.  Bal-er,  1  Jones  267. 

57.  If,  after  words  of  anger,  the  slayer  took  up  an  axe  and  ap- 
proached the  deceased  with  intent  to  kill  him,  or  do  him  some 
great  bodily  harm,  and  the  deceased  had  sufficient  reasons  for 
believing  that  such  was  his  intention,,  he  had  a  right  to  strike  in 
i-'eli-defence,  although  the  assailant  was  not  sufficiently  near  to 
strike  him,  and  such  striking  by  the  deceased  would  not  amount 
to  a  legal  provocation,  to  mitigate  the  killing  to  manslaughter. 
Ibid. 

58.  Where  one  strikes  another  a  violent  blow,  vnxh  a  heavy 
pole  pointed  with  iron,  and  a  fight  ensues  in  which  the  person 
assailed  uses  a  deadly  weapon,  with  which  be  knocks  down  his 
adversary  and  disables  him,  and  follows  up  his  blows  with 
great  violence  and  cruelty  until  he  kills  him ;  this,  on  account 
of  the  greatness  of  the  provocation  offered  by  the  deceased  in 
the  first  instance,  is  but  manslaughter.  State  v.  Curry,  i  Jones, 
280. 

59.  The  doctnne  of  killing  upon  provocation  discussed,  and 
the  distinctions  pointed  out  lietween  the  circumstances  when 
such  killing  will  be  murder,  and  when  it  will  be  only  man- 
slaughter.    Ibid. 

60.  A  mere  grudge,  or  malice  in  its  general  sense,  is  not  suffi- 
cient to  bring  a  case  within  .the  rule  which  refers  the  killing  to 
antecedent  malice,  rather  than  to  an  immediate  provocation.  In 
order  to  have  that  effect,  there  must  be  a  particular  and,  indefi- 
nite intent  to  lAll,  as  if  the  weapon  with  which  the  party  intends  to 
kill  be  shown,  and  the  time  and  place  are  fixed  on,  and  the  party 
goes  to  the  place  at  .the  time,  for  the  purpose  of  meeting  his  ad- 
versary, with  the  intent  to  kill  him ;  for  in  such  case  there  is  in 
law  a  presumption  of  malice  until  it  is  rebutted  by  the  accused. 
But  where  tlie  slayer  bears  malice  against  his  adversary  and  they 
meet  by  accident  and  a  (quarrel  ensues,  during  which  the  adver- 
sary strikes  the  slayer  with  a  grubbing  hoe,  whereupon  he  is  shot 
and  killed  with  a  pistol,  the  rule  of  refering  the  homicide  to 
the  motive  of  a  previous  malice  will  not  apply.  State  v.  Jolm- 
8on,  2  Jones,  247. 

61.  Where  a  killing,  which  would  have  been  manslaughter  by 
reason  of  having  been  done  on  legal  provocation,  is  nevertheless 
insisted  to  be  murder  because  of  the  unusual  manner  hi  which 


HOMICIDE.  693 

tlie  homicide  -was  committed,  if  there  be  several  aspects,  in 
■which  the  alleged  unusual  manner  may  be  viewed  as  qualifying 
the  motive  of  the  prisoner,  some  of  which  are  favorable  and 
others  not^  it  is  error  in  the  court  to  submit  to  the  jury  only  the 
unfavorable  views.     State  v.  Gentrij,  2  Jones,  406. 

62.  Where  the  nnusual  circumstance  relied  on,,  as  aggravating 
the  case  from  manslaughter  to  nnn-der,  was  that  the  prisoner 
put  his  knife  rypen  in  Ids  pocket,  and  the  court  charged  the  jury 
that  if  the  prisoner  put  his  knife  open  in  his  pocltet,  and  ad- 
vanced to  meet  the  prisoner  witli  a  view  to  a  rencounter,  and 
with  the  intent  to  use  the  knife,  not  in  self-defence  but  with  the 
design  to  take  the  life  of  the  deceased,  and  he  did  so  use  his 
knife  in  killing  deceased,  it  was  murder ;  it  vms  held  that  the 
judge  ought  also  to  have  charged  them,  that  if  the  prisoner  put 
ins  knife  open  in  his  pocket  Avithout  thinking  of  it,  or  with  the 
view  to  use  it  only  in  the  event  of  its  being  necessary  to  do  so 
in  selt^defence,  then  the  killing  was  only  manslaughter.     Ibid. 

63.  If  a  husband  slay  a  man  in  the  very  act  of  adultery  with 
his  wife,  it  is  only  manslaughter;  but  if  he  slay  him  because  the 
deceased  had  before  that  time  committed  adultery  with  his  wife, 
or  because  he  believed  the  deceased  was  going  off  Avitli  her  to 
c  mrait  the  act,  it  is  murder.     State  v.  Samml,  3  Jones,  74. 

(j4.  In  a  trial  for  murder,  where  the  homicide  is  clearly  estal  >- 
lished  or  admitted,  everj^  matter  of  excuse,  mitigation  or  justifi- 
cation, must  be  shown  by  the  prisoner,  and  he  has  no  right  to  an 
instruction  from  the  court,  that,  unless  the  jury  are  satisfied  be- 
yond a  reasonable  doubt  that  the  case  is  murder,  they  must  hud 
it  to  be  manslaughter.     State  v.  Johnson^  3  Jones,  266. 

65.  If  a  man  deliberately  kill  another  to  prevent  a  mere  tres- 
pass on  his  property,  whether  it  could  have  been  otherwise  pre- 
vented or  not,  he  is  guilty  of  murder.  «  Stace  v.  McDonald.  4 
Jones,  19. 

66.  Though  a  person  may  engage  in  a  fight  Avillip g]y,  yet,  if 
in  its  progress,  he  be  "sorely  pressed,"  that  is,  put  to  the  Avail, 
so  that  he  must  be  killed  or  suffer  great  bodily  harm,  unless  he 
kill  his  adA^ersaiy,  and  under  such  circumstances  he  does  kill, 
it  is  excusable  homicide.     State  y.  IngoJd,  4  Jones,  216. 

67.  Where  the  prisoner  and  deceased  Avere  friendly,  and  being 
together  at  a  certain  place,  the  prisoner  mounted  his  horse  for 
the  purpose  of  going  home,  A\dien  the  deceased  seized  the  reins 
and  held  them  forcibly  for  from  ten  to  forty-fiA^e  minutes,  in  spite 
of  the  efforts  of  the  prisoner  to  get  loose,  whereupon  the  prisoner 
dismouTited  and  stnick  the  deceased  AAuth  a  jug  full  of  molasses, 
(Avhich  he  had  casually  in  hands.)  seA'cral  bloAvs,  Avhich  proA^ed 
fatal,  it  luas  held  that  the  killing  Avas  a  case  of  manslaughter  and 
not  murder.     State  v.  Eamseij,  5  Jones,  195. 

68.  A  person,  A\dio  has  inflicted  a  mortal  bloAv,  cannot  be  con- 
victed of  a  homicide,  if  the  Avounded  man  were  in  fact  subse- 


694  HOMICIDE. 

quently  killed  by  another,  having  no  understanding  or  connec- 
tion with  the  first.     State  v.  Scutes,  5  Jones,  420. 

69.  Where  it  appeared  that  two  persons  had  formed  the  design 
to  wrongfully  assail  a  third,  and  one  of  tlieni,  in  furtherance  of 
such  design,  with  a  deadly  weapon  aiid  without  provocation,  did 
assail  and  kill  him,  it  was  held  that  both  were  guilty  of  murder. 
State  V.  Simmons,  6  Jones,  21. 

70.  Where  it  appeared  that  the  prisoner  had  prepared  a  deadly 
weapon  witii  an  intention  to  use  it,  in  case  he  got  into  a  fight 
with  the  deceased,  and  went  to  a  particular  place  for  the  purpose 
of  meeting  Avith  him,  and  of  having  a  conflict  with  him,  it  was 
held  to  be  murder,  and  not  manslaughter.  State  v.  Hogve,  6 
Jones,  381. 

71.  If  two  men  engage  in  a  fight  mutually  and  suddenly,  and 
one  kills  with  a  deadly  weapon,  it  is  but  manslaugditer,  and, 
ordinarily,  it  is  not  material  which  makes  the  first  assault.  State 
v.  Floyd,  6  Jones,  S92. 

72.  The  fact  that  the  prisoner  was  informed,  or  believed  that 
tlie  deceased  committed  a  rape  upon  his  wife,  or  committed 
adultery  witli  her,  will  not  extenuate  a  homicide  from  murder  t<") 
manslaughter.  He  must  find  the  deceased  in  the  verj-  act.  and 
kill  him  immediately,  to  have  that  effect.  State  v.  Neville,  G 
Jones,  423. 

73.  On  an  ijidictment  for  murder,  the  question  whether  the 
instrument,  or  weapon  used,  was  a  deadly  one,  is  for  the  court. 
The  instrument  may  be  deadly  or  not,  according  to  the  mode  of 
using  it,  or  the  subject  on  which  it  is  used.  And  the  effects  pro- 
tluced  by  the  instrument!  may  aid  in  determining  its  chai^acter, 
and  in  shoAving  that  the  person  who  used  it  ought  to  have  been 
aware  of  the  danger  ot  thus  using  it.  Hence,  it  was  held  that 
an  oaken  staff  near  three  feet  long,  of  the  diameter  of  nearly  two 
inches,  with  wliich  three  blows  were  stricken  upon  the  head  of 
a,  man  while  drunk  and  helpless,  shattering  the  bones  of  the 
head  and  rupturing  the  interior  vessels  of  the  brain,  was  a  deadly 
weapon,  and  the  killing  by  the  use  of  it   was  murder.     State  v. 

I't'e.d,  6  Jones,  505. 

74.  A  blow  need  not  endanger  the  life  of  the  prisoner  in  order 
to  make  it  amount  to  a  legal  provocation.  State  v.  Sizemore,  7 
Jones,  206. 

75.  The  time,  intervening  between  the  receiving  of  a  legal 
provocation  and  the  striking  of  the  mortal  blow,  is  a  question  of 
law,  and  it  is  error  to  submit  it  to  the  jvny.     Ihid. 

76.  If  a  person  deliberately  kill  another,  to  prevent  a  mere 
trespass  upon  property,  he  is  guilty  of  murder.  State  v.  Brcmdon, 
8  Jones,  4()3. 

77.  ^^''here  a  defendant  in  a  State's  warrant,  which  charged  a 
misdemeanor,  put  himself  in  armed  ^^sistanoe  to  the  officer  hav- 
ing the  waiTant,  and  the  officer,  in  the  attempt  to  take  the  de- 


HO^riCIDE.— HOTCHPOT.  G95 

fendant,  slew  liim,  ■without  resorting  to  unnecessary  violence,  it 
icas  held  that  he  M-as  justified.     State  v.  Garrett,  1  AVinst,  144. 

78.  Tlie  principle  of  self-defence  does  not  apply  to  the  case  of 
one,  ^vho  puts  himself  in  the  posture  of  armed  defiance  to  the 
process  of  the  State.     Ibid. 

79.  One  who  is  not  a  regular  officer,  but  to  whom  a  State's 
warrant  is  specially  directed,  is  bound  to  shoAv  it,  and  to  read  it 
if  required;  but  where  the  defendant  in  such  warrant  had  notice 
of  the  process,  was  fully  aware  of  its  contents,  and  had  made  up 
his  mincl  before  hand  to  resist  its  execution,  it  icas  held  that  the 
ofticer  did  not  become  a  ti-espasser  ab  initio  hx  refusing  to  pro- 
duce his  \varrant  on  demand,  so  as  to  justify  the  defendant  in 
resisting  its  execution.     I  hid. 

'SO.  1  f  two  men  fight,  on  a  sudden  quarrel,  with  deadly  weapons, 
and  one  strike  the  other  a  mortal  bloAv  before  the  person  so  strick- 
en_ is  prepared  to  use  his  weapon,  the  killing  is  murder;  and  so 
it  is  if  any  unfair  advantage  be  taken,  and  if  one  use  a  knife  and 
the  other  a  stick  or  a  pistol,  they  do  not  fight  /a«7?/  and  on  equal 
terms,  and,  therefore,  the  parly  killing  is  guilty  of  "murder.  State 
V.  ElUck.  2  Winst.,  bix  '  * 

81.  If  an  indictment  for  murder  charge  that  A  killed  the  deceased, 
and  that  others  were  present  aidhigand  abetting,  and  it  is  proved 
that  the  deceased  was  killed  by  some  one  with  whom  A  was  act- 
ing in  concert,  and  that  A  was  present  aiding  and  assisting,  the 
ju-oof  sustains  the  charge,  and  the  jury  should  be  instructed  to 
find  A  guilty  of  murder.     State  v.  CochnaM,  2  Winst.,  95. 

f>2.  If  several  armed  men  go  to  a  dwelling  house  in  the  night 
time^  for  the  puiix.)se  of  seizing  the  owner,  without  lawful  "au- 
thority, and  one  of  them  be  killed  by  the  owner  to  prevent  the 
;^xecution  of  their  purpose,  such  killing  is  not  murder.  State  v. 
Jledlin,  2  Winst.,  99. 

See  (Assault  and  Battery,  5-12.)  (Indictment  and  matters 
relating  thereto,  1-8-13-14-15-27-32-43-53-54-6(3-89-110-1 11- 
1 19-1 2()-138-139-157-163. )  (Indictment— =0f  the  trial,  verdict 
and  judgment,  7-18-22-2()-29-30-31-50-51-54-74-80-81-84- 
103-107.)  (Indictment — Variance  between  the  allegations  and 
proof,  6-12.)  (Evidence — In  criminal  proceedings  and  indict- 
ments, 9-22-32-52-53-69-71-72-73-76-77-78-80-81-83-84-85- 
87-88-90-95-97-98-101-104-109-110-111-116-117-122-124.) 


HOTCHPOT. 

1.  Where  a  devisor  purchased  land  after  making  his  will,  and 
gave  a  jwrtion  of  them  to  one  of  his  children  in  his  life  time,  and 
died  without  having  disposed  of  the  residue,  if  wa.s  held  that  the 
knd  advanced  to  that  child  must  be  brought  into   hotchpot, 


696 


HOTCHPOT.— HUSBAND  AND  WIFE.— I. 


in  the  division  of  the  undisposed  of  land  among  the  devisor's 
children,  and  the  land  advanced  must  be  valued  at  its  worth  at 
the  time  of  the  gift,  and  the  land  to  be  divided  according  to  its 
value  at  the  ancestor's  death.  Toonier  v.  Toovier,  2  Hay.,  368. 
(563,)  and  375,  (573,)  S.  C.  1  Murph.,  93. 

2.  Where  an  intestate  had,  in  his  life  time,  conveyed  one  tract 
of  land  to  one  of  his  daughters  and  her  heirs,  one  to  her  husband 
and  his  heirs,  and  another  to  the  daughter  and  her  husband  and 
their  heirs,  one  of  tlie  deeds  purporting  to  be  for  natural  love 
and  affection,  one  for  a  small  pecuniary  consideration,  and  one 
for  natural  love  and  five  shillings,  it  was  held  that  the  land  con- 
veyed to  the  husband  alone  was  not  to  be  brought  into  hotchpot; 
])ut  that  the  land  conveyed  to  the  wife  alone,  and  one-half  of 
that  conveyed  to  the  husband  and  wife  were  to  be  so  brought. 
Jones  V.  Spaight^  2  JMurph.,  89. 

3.  Lands  advanced  to  a  child  in  the  life  time  of  the  parent  are 
not  to  be  brought  into  account,  in  the  settlement  and  distribu- 
tion of  the  personal  property  of  the  parent,  after  his  death.  Jones 
V.  Jones,  2  i\lurph.,  15d  S.  P.  Wilson  v.  Hiqlnower,  3  Hawks, 
76.  (Altered,  see  licv.  Code,  cli.  38,  sec.  1,  Rule  2  and  ch.  64, 
sec.  2.) 

4.  Where  a  testator  died,  leaving  one  tract  of  land  undisposed 
of,  and  leaving  a  daughter  to  whom  he  had  given  no  huid  but  a 
full  share  of  his  personal  estate,  the  other  sons  and  daughters,  if 
they  claim  a  share  of  the  land  so  undisposed  of,  must  bring  into 
hotchpot  all  the  land  settled  upon  them  by  the  testator,  either  by 
deed  or  devise.     Norwood  v.  Branch,  .2  Car.  L.  IL,  598,  (400.) 

See  (Distribution,  2-10-20-21.) 


HUSBAND  AND  WIFE. 


I.  Of  marringe. 

II.  Husband's  interest  in  his  wife's 
person. 

III.  Husband's  interest  in  his  wife's  es- 

tate during  coverture,  and  af- 
ter death,  as  survivor. 

IV.  Conveyance  of  real  estate  telius- 

band  and  wife. 
V.  Conveyance  by  hus&and  and  wife. 


VI.  -Of  marriage  settlements  and  agree- 
ments. 
VII.  Of  actions  by,  and  against,  husband 

and  wife. 
VIII.  How  far  the  husband  is  bound  by 
the  acts  and  admissions  of  his 
wife,  before  and  after  marriage. 
IX.  Of  the  liability  of  a  wife  for  her 
own  acts  during  coverture. 


I.       OF  MARRIAGE. 


1.  Oral  evidence  of  cohabitation  is  admissible  as  evidence  of 
jnarriage.      Wiitehead  v.  Clmcli,  2  Hay.,  3,  (146.) 

2.  General  reputation  and  cohabitation  are  evidence  of  mar- 


HUSBAND  AXD  WIFE.— I.  697 

riao-e  in  all  cases,  except  in  actions  of  crim.  con.      Weaver  v.  Cry- 
e?-,'l  Dev.,  337. 

3.  Where  a  husband  sues  for  an  injury  to  his  marital  rights, 
he  nnist  prove  the  solemnization  of  the  marriage;  but  in  those 
cases  in  which  ne  unqnes  accoupJe  is  not  a  proper  plea,  the  marriage 
mav  l>e  inferred  from  circumstances.  Brhwjar  v.  Chaffin,  3 
Dev.,  108. 

4.  The  marriage  of  shives  in  this  state  consists  only  of  cohab- 
itation by  the  consent  of  the  ownei's,  and  does  not  constitute  the 
relation  of  husband  and  wife,  so  as  to  attach  to  them  the  privi- 
leges and  disabilities  incident  to  that  relation  by  the  common 
law.     State  Y.  Samuel,  2  Dev,  and  Bat.,  177. 

5.  ]Marriage  is  in  law  complete,  when  parties  able  to  contract 
and  Avilling  to  contract  have  actually  contracted  to  be  man  and 
wife,  in  the  forms  and  with  the  solemnities  rec[uired  by  law.  Con- 
summation by  carnal  knowledge  is  not  necessary  to  its  validity. 
S'ate  V.  Patterson,  2  Ired.,  34<). 

G.  Where  a  marriage  is  solemnized  in  another  state,  in  the 
manner  prescribed  by  the  laws  of  this  state,  the  court  must  in- 
tend such  a  marriage  to  be  good,  unless  the  contrary  be  shown. 
Ibiu'.^ 

7.  The  act,  prohibiting  marriages  between  white  persons  and 
persons  of  color,  includes  in  the  latter  class  all  who  are  descend- 
ed h'om  negro  ancestors  to  the  fourth  generation  inclusive,  though 
one  ancestor  of  each  generation  may  have  been  a  white  person. 
State  V.  Waiters,  3  Ired.,  455.  (The  Rev.  Code,  ch.  G8,  sec.  7, 
says  "  free  negro  or  free  person  of  color  to  the  tliird  generation.") 

8.  Where  a  marriage  is  celebrated  between  persons,  one  of 
Avhom  lias  no  capacity  to  contract  marriage  at  all,  as  where  there 
is  want  of  age  or  understanding,  or  a  prior  marriage  still  sub- 
sisting, the  marriage  is  void  absolutely  and  from  the  beginnhig; 
and,  as  between  the  parties  themselves  and  those  claiming  un- 
der them,  no  rights  whatever  are  acquired  by  such  marriage. 
And  whether  a  marriage  was  void  or  not,  may  be  enquired  into 
Ijy  any  court,  in  which  rights  are  asserted  under  it,  although  the 
j)arties  to  the  marriage  be  dead.   Gathings  v.  Williams,  5  Ired.,  487. 

9.  Where  husband  and  wife  are  domiciled  in  this  state,  and 
the  husband  obtains  a  divorce  from  the  bonds  of  matrimony  on 
account  of  her  adultery,  and  she  then  goes  into  another  state 
while  her  late  lms1)and  is  living,  and  there  marries  another  man 
in  evasion  of  the  laws  of  this  state,  which  prohibit Jier  from  mar- 
rying again,  such  marriage  is  null  and  void  to  all  purposes. 
Williams  v.  Oates,  5  Ired.,  535. 

10.  It  is  not  necessary  to  the  validity  of  a  marriage  that  the 
parties  shoidd  have  obtained  a  license  from  the  clerk  of  the  coun- 
ty court.  The  omission  of  the  license  only  subjects  the  minister, 
or  justice,  performing  the  ceremony  to  a  penalty.  State  v.  Rob- 
bins^  6  Ired.,  23. 


698  HUSBAND  AXD  WIFE.— I. 

11.  It  is  sufficient  proof  of  a  marriage  that  the  ceremony  was 
]M;n-formed  by  one,  who  was  in  the  known  enjoyment  of  the  oifice 
of  a  justice  of  the  peace,  and  notoriously  acting  as  such.  It  is 
not  necessary  to  produce  his  commission  from  the  governor. 
1  hid. 

12.  The  words  '^the  cure  of  souls"  used  in  the  mairiage  act,. 
Iiev.  Stat.,  ch.  71,  do  not  imply  a  necessity  that  the  minister 
sh(ndd  be  tlie  incumbent  of  a  chui'ch  livingv  or  the  pastor  of  any 
•  umgregation  or  congregations  in  particular;  but  they  do  imply 
that  the  person  is  to  be  something  more  than  a  minister  merely, 
and  that  he  has  the  faculty,  according  to  the  constitution  of  his 
church,  to  celebrate  the  rights  of  matrimony,  and  to  some  ex- 
tent, at  least,  has  the  power  to  administer  the  christian  sacra- 
ments. And  when  a  marriage  is  claimed  to  have  been  made  by 
a  minister,  the  exteiit  of  his  authority  for  that  purpose  should 
a]ipcar.  Staie  v.  Bray,  13  Ired.,  281).  (See  Rev.  Code,  ch.  68, 
sec.  1,  Avhere  the  words  having  "  the  cure  of  souls  "  is  omitted.) 

IT).  The  act  of  1838,  ch.  24,  declaring  void  all  marriages  be- 
tween white  persons  and  free  negroes  and  persons  of  color,  in- 
cludes only  cases  where  such  persons  of  color  are  within  the 
third  degree.  Hence,  where  in  an  indictment  for  fornication 
against  A  and  B,  who  had  been  married,  it  appeared  that  one  of 
the  defeildants  was  of  Indian  blood,  but  of  what  degree  was  not 
])rovcd,  it  2vas  lield  that  the  parties  could  not  be  convicted.  State 
V.  Melton,  Bush.,  49.     (See  Kev.  Code,  ch.  ()8,  sec.  7.) 

14.  If  one  marry  an  infaE-t  female  under  fifteen  years  of  age, 
without  the  consent  of  her  fother  or  guai'dian,  the  forfeiture,  un- 
der the  act  of  1820,  does  not  arise  from  the  oflence  simply,  but 
from  that  and  a  conviction  therefor  in  due-  time.  Ludnncl'  v. 
Stafford,  6  Jones,  109.  (The  law  is  now  altered,  so  that  the  for- 
ieiture  accrues  immediately  upon  the  commission  of  the  offence. 
See  liev.  Code,  ch.  ^ot^,  sec.  10  and  11.) 

15.  A  male  and  female  slave  intermarried  Avith  the  consent  of 
the  owners,  in  the  forn>  usual  among  slaves;  afterwards  the 
male  slave  was  dul^-  emancipated  and  purchased  his  wife,,  and 
after  that  they  had  one  child;  the  female  slave  was  then  eman- 
cipated, and  without  any  further  marriage  ceremony  they  con- 
tinued to  live  together  and  had  sevei'al  other  children ;  the  fe- 
male then  died  and  the  male  married  in  due  form  a  free  woman.,. 
l)y  whom  he  also  had  children;  and  it  uxin  held  that  there  was 
no  legal  marriage  between  the  man  and  liis  first  wife,  and,  con- 
sequenth',  her  children  were  illegitimate,  and  could  not  inherit 
upon  the  death  of  their  father,  as  tenants  in  common  with  his 
legitimate  children  by  his  second  wdfe^  Howard  v.  Howard,  (> 
Jones,  235. 

16.  The  12th  section  of  the  68th  cliapter  of  the  Revised'  Cbdi© 
(concerning  marriage,)  which  requires  a  certifi'cate  in  case  the 
parent  or  guardian  of  a  female  lives  out  of  the  State^  before  a 


HUSBAXD  AXD  WIFE.— I.-II.-III.  099 

marriage  license  .shall  be  issned,  is  not  confined  to  females  under 
tifteen,  but  applies  to  all  under  twenty  one  years  of  age.  Caroon 
V.  Rogers,  ()  Jones,  240. 

17.  The  peiialty  ot  $1,000,  given  bv  the  13th  section  of  the 
same  act  against  a  clerk  who  wrongfully  issues  a  license,  cannot 
he  recovered  in  the  name  of  the  father  of  the  infant  female,  but 
must  1)6  sued  for  in  the  name  of  the  State.     Ihid. 

18.  Where  at  the  time  of  a  marriage  the  female  was  under 
the  age  of  fourteen,  and  the  parties  continued  to  live  together 
as  man  and  wife,  after  she  had  attained  that  age,  it  mas  held  that 
tliere  was  nothing  in  the  Ilex.  Code,  ch.  68,  sec.  14,  to  abrogate 
the  principle  of  the  common  law,  and  that  such  living  together 
as  man  and  wife,  after  tiie  age  of  consent  established  i^y  the  act 
referred  to,  amounted  to  a  confirmation  of  the  marriage.  Koonre 
V.   Wcdlace,  7  Jones,  194. 

See  (Evidence — Hearsay  and  cominon  reputation,  3-1 0-1(5- 
17.)  (Indictment — When  an  indictment  will  lie,  37-59.)  (In- 
dictment— Limitation  of  time  within  which  an  indictment  will 
lie,  3-4-5.) 

H.     husband's  interest  rK  ms  wife's  person. 

See  (x\ction  on  the  case — When  case  will  or  will  not  lie,  18.) 

3n.     husband's  interest  in  his  wife's  estate  during  coverture,  and 

AFTER    HER    DEATH,    AS  SURVIVOR. 

1.  A  note  given  to  a  married  woman,  living  separate  from  her 
husband,  becomes  his  at  once,  without  his  assent.  Sivann  v. 
Gauge,  1  Hay.,  3,  (5.) 

2.  After  the  death  of  the  wife,  if  the  husband  die  before  taking 
administration  upon  her  choses  in  action,  lier  administrator,  and 
not  his,  is  the  proper  person  to  sue  for  and  distribute  them;  but 
lie  must  account  to  the  huBband'«  administrator  for  all  he  re- 
ceives, above  what  will  pay  her  debts — the  husband  being  enti- 
tled as  next  of  kin  to  the  Avife.      Whithie  v.  Frazier,  1  Ha'v.,  275, 

3.  Slaves,  in  whom  the  wife  has  a  remainder,  vest  in  the  hus- 
band, though  he  dies  during  the  coverture,  without  having  re- 
duced them  into  possession.  Leu-is  v.  Bi/nes,  1  Hay.,  278,  (320.) 
See  contra,  Hynes  v.  Leivis.  Tav.,  44,  (33.)     Neat  v.  Haddock,  2 

Hay.,  183,  (383.)     3foye  v. -,  Ihid,  188,  (387.)     Neal  v.  Bad- 

docJc,  Conf  Rep,,  75,  (207.)  McGallop  v.  Blount,  Ibid,  96,  (227.) 
Idcr>  qucere!  and  see  Knight  v.  Leal-e,  2  Dev.  and  Bat.,  133. 

4.  Where  a  tenant  for  life  l)equeathed  one-half  of  the  emble- 
ments, to  which  she  was  entitled,  to  her  daughter,  and  left  an 
executor,  who,  after  reaping  and  housing  the  crop,  married  the 
daughter,  but  died  before  he  had  sold  or  otherwise  disposed  of 


700  HUSBAND  AND  WIFE.— III. 

it,  l.e'd  that  his  possession  of  the  crop  was  on\j  as  executor,  and 
that,  upon  his  death,  his  wife,  and  not  his  administrator,  was 
entitled  to  it.     Berry   McAli.ster,  Conf  Eep.,  lUO,  (231.) 

5.  Upon  the  marriage  of  a  feme  sole,  a  life  estate  in  a  chattel, 
reserved  by  a  deed  of  gift  made  by  lier,  when  sole,  to  her  son, 
l^ecomes  vested  in  her  husband.  Black  v.  Beathi,  2  Murph.,  240. 
S.  C,  1  Car.  L.  E.,  96,  (12.) 

(I  If  a  feme  sole,  just  before  her  nmrriage,  convey  slaves  to 
her  mother,  without  the  knowledge  or  consent  of  her  intended 
husl)and,  he  cannot,  after  marriage,  recover  them  back  in  right 
of  his  wife,  at  least  in  a  court  of  law.  Johnson  v.  HamhleL  2  Car. 
L.  R.,  1)(7,  (103.) 

7.  A  warranty  of  title,  annexed  to  a  slave  sold  to  the  wife  be- 
fore coverture,  if  the  slave  be  recovered  from  the  husband  after 
the  death  of  the  wife,  does  not  survive  to  the  husband;  because, 
though  relating  to  property  which  did  vest  in  the  husband,  its 
essential  quality  as  a  chose  in  action  remained  unaltered;  aiid 
+he  husband  could  not  recover  upon  it,  except  as  the  administra- 
tor of  the  wife.     Casey  v.  Fonville,  2  Car.  L.  R.,  404,  (2S7.) 

8.  A  slave  hired  out  for  a  year  is  not  a  chose  in  action,  and  if 
a  feme  owner  of  such  slave  marry  during  the  year  and  her  hus- 
band die  before  the  end  of  it,  the  slave  will  not  survive  to  her, 
Ijut  Avill  vest  in  his  personal  representative.  WhitaJ;er  v.  WMta- 
/.Y:/-,  1  Dev.,  310.  S.  P.,  Granberry  v.  Mhoon,  Ibid,  45G.  Petti- 
jolm  V.  Beasley,  4  Dev.,  512. 

9.  The  husband,  by  his  marital  rights,  is  entitled  to  the  per- 
sonal estate  of  his  deceased  wife,  whoever  may  administer.  Hos- 
idns  V.  3mer,  2  Dev.  3(50. 

10.  The  husband  acquires,  by  marriage,  no  estate  in  the  land 
of  his  wife,  of  which  she  is  not\ictually "seized.  And  where  the 
vv^ife  has  a  vested  remainder  in  lands,  a  sale,  in  the  lifetime  of  the 
particular  tenant,  of  the  husband's  interest  passes  nothing  to  the 
purchaser.      Gentry  v.   Wagsfcffe,  3  Dev  ,270. 

11.  It  seems  that,  at  law,  the  husband's  assignment  will  pass 
every  expectant  chattel  interest  of  the  wife,  as  if  it  were  an  in- 
terest ot  his  own,  unless  so  limited  that  it  cannot,  by  possi))ility, 
vest  in  possession  during  the  coverture.  But,  at  all  events,  an 
assignment  of  the  husband,  if  not  binding  on  the  wife  surviving, 
while  the  interest  continues  expectant,  is  certainly  valid  as  a 
conveyance,  when  the  interest  fells  into  possession  during  the 
coverture.     Burnett  v.  Boberts,  4  Dev.,  81. 

12.  Slaves  lent  to  a  woman  before  marriage  will  l^o  held  by  her 
husband  as  bailee,  and  the  statute  of  limitations  will  not  operate 
in  favor  of  his  possession,  until  the  contract  of  bailment  is  at  an 
end.     Logan  v.  Simmons,  1  Dev.  and  Bat.,  13. 

13.  A  conveyance  by  a  woman  before  marriage  is  not,  at  law, 
under  any  circumstances,  a  fraud  upon  the  marital  rights  of  the 
husband.     Ibid. 


HUSBAND  AND  WIFE.— III.  701 

14.  The  husband  is  not,  by  niariiage,  the  purchaser  of  his 
-H'ife's  chattels.  JMamag-e  is  the  only  contract  between  the  par- 
ties ;  the  latv  gives  to  the  hnsband  his  wife's  goods  as  an  inci- 
dent. And  Avhat  the  wife  has  disposed  of  before  marriage  is 
not  hers,  and,  therefore,  is  not  tiTinsferred  to  the  husband.  But 
on  ante-nuptial  voluntary  bond,  or  conveyance  of  the  wife,  may, 
in  some  cases,  be  relieved  against  in  equity.     Ibid. 

15.  If  an  administrator  marry  the  next  of  kin  of  his  intestate, 
and  has  assets,  and,  upon  the  deatli  of  his  wife,  administers  upon 
lier  estate,  her  distributive  shaie  becomes  his  property,  the  claim 
being,  by  mere  operation  of  law,  satisfied  and  extinguished;  and, 
in  such  case,  it  seems,  the  wife's  share  would  become  the  property 
of  the  husband,  without  an  administration  on  her  estate.  Dozier 
v.  jSanrhrlin,  1  Dev.  and  Bat.,  24(3. 

16.  \Yliere  an  intestate  is  indebted  to  the  wife  of  his  adminis- 
trator, and  the  latter  has  assets,  the  debt  is  satisfied  by  the  mere 
<:>peration  of  law,  and  does  not  survive  to  the  wife.  AVhether  the 
debt  of  the  intestat<?  be  due  to  the  husband  or  the  wife,  and 
whether  the  one  or  the  other  be  the  representative,  the  doctrine 
of  retainer  applies,  and  the  debt  is  extinguished.     Unci. 

17.  A  husband  has,  jixre  mariH,  such  a  dominion  over  the 
vested  legal  interest  of  his  wife  in  a  chattel,  real  or  personal,  of 
which  a  particular  estate  is  outstanding,  that  he  can  sell  sucii 
interest,  so  as  to  transfer  it  completely  to  the  purchaser;  or  the 
law  can  transfer  it  for  his  debts.  But  the  rule  is  difierent  as  to 
the  assignment  by  the  husband  of  his  Avife's  equitable  interest  in 
a  chattel,  in  which  she  has  not  the  right  of  immediate  enjoyment ; 
for  such  assignment  will  n.ot  prejudice  her  right,  should"  he  die 
before  her,  and  l)efore  the  jDeriod  allotted  for  such  enjoyment  to 
take  effect.     Knujld  v.  Lecihe,  2  Dev.  and  Bat.,  133. 

18.  A  legacy  given  to  a  wife  during  coverture,  but  not  paid 
to  the  husband  during  his  lifetime,  survives  to  her;  especially 
where  he  joined  her  in  a  suit  to  recover  it,  and  died  before  final 
judgment.     Revel  v.  Revel,  2  Dev.  and  Bat.,  272. 

ly.  In  lands  conveyed  to  husband  and  wife,  they  have  not  a 
joint  estate,  but  hold  by  entireties,  and  upon  the  death  of  either 
of  them,  the  whole  estate  continues  in  the  survivor,  notwith- 
standing the  act  of  1784,  for  abolishing  the  right  of  survivor- 
ship. Motley  V.  WJiitemorc,  2  Dev.  and  Bat.,  537.  (See  Rev. 
Code,  ch.  4:6,  sec.  2.) 

20.  A  distributive  share,  accruing  to  a  wife  during  coverture, 
does  not  vest  in  the  husband,  but  will  survive  to  the  wife,  unless 
reduced  into  possession  by  the  husband.  Mardrce  v.  Mcuxlree,  1) 
Ired  295. 

21.  Where  the  wife  is  tlie  sole  next  of  kin,  and  the  husband 
the  administrator,  and  the  debts  of  the  intestate  are  paid  or  as- 
sumed by  him.  and  there  are  no  i-easons  why  he  should  holdanv 


/ 


702  HUSBAND  xVND  WIFE.— III. 

lono-er  as  administrator,  tlie  presumption  is  very  strong  that  he 
hold  as  husband,  and  consequently  for  himself.     Ibid. 

22.  Where  there  are  other  next  of  kin  besides  the  wife,  the 
husband  being  administrator,  he  must,  in  order  to  entitle  him- 
self to  the  property  in  his  own  right,  ,appear  to  be  dealing  with 
it  as  his  own,  and  not  as  administrator.  Thus,  where  there  were 
other  funds  for  the  payment  of  debts,  and  the  husband  and  tht; 
other  next  of  kin  agreed  to  work  the  slaves  on  the  intestate's 
lands,  and  at  the  end  of  the  year  to  divide  the  proceeds  of  lire 
crop  "according  to  their  right  as  distributess, "  it  luas  held  that 
this  was  a  sufficient  reduciion  into  possession  by  the  husband, 
to  prevent  any  right  of  survivorship  in  the  wife.     Ibid. 

2H.  Property  conveyed  to  a  married  w^oman,  after  a  decree  ob- 
tained in  her  favor  under  the  act  Rev.  Stat.,  oh.  39,  sec.  12,  is 
not  ]>rotected  against  the  claims  of  the  husband's  creditors,  if 
the  husband  has  paid,  either  from  bis  own  means  or  the  earnings 
of  his  infant  children,  who  live  with  him,  the  whole  or  any  con- 
siderable portion  of  the  purchase  njoney.  Worth  v.  York,  IH 
ired.,  206.     (See  Rev,  Code,  ch.  oi),  sec.  U.) 

24.  Where  personRi  property  belonging  to  a  feme  is  held  ad- 
versely for  more  than  three  years  against  her,  while  she  is  an  in- 
fant, and  during  her  coverture,  which  commenced  before  she  be- 
cauie  of  age,  she,  upon  the  death,  of  her  husband,  is  entitled  to 
recover  it,  as  her  infancy  and  coverture  prevented  the  statute  o\' 
limitations  from  barring  her  right,  and  the  adverse  possession 
of  the  property  prevented  it  from  vesting  in  her  husliand. 
Airey  v.  Holmes.,  5  Jones,  142. 

25.  If  a  man  marry  a  woman,  who  was  divorced  from  her  first 
husband  on  account  of  her  adultery,  the  iuarriage,  during  flit; 
life  of  the  first  husband,,  is  absolutely  void,  and  the  second  hus- 
band cannot  actpiire  any  interest  in  her  property,  given  to  her 
during  the  existence  of  su€h  unlawful  marriage.  Culloivut/  v. 
Bryan.  6  Jones,  5H1K 

'26.  A  bequest  of  slaves  to  «,  man  and  his  wife  "during  their 
natural  lives,"  and  "then  to  the  lawful  heirs  of  the  wife,"  gives 
the  absolute  estate  to  the  wife  by  the  rule  in  Shelly 's  case,  and  it 
immediately  vests  in  the  husband,  Jitre  mar  Hi.  Hodges  v.  Little, 
7  Jones,  145. 

27.  The  act  of  184.S,  Rev.  Code,  ch.  50,  see.  1,  does  not  deprive 
the  husband  of  his  estate  by  the  cui'tesy,  in  the  lands  of  his  wife. 
Houston  V.  Broicn,  7  Jones,  IGl. 

28.  Where,  by  a  deed  to  a  feme  covert,,  an  estate  was  conveyed 
to  her  for  her  own  life,  it  luas  held  that  her  husband  had  no  in- 
terest in  it,  except  the  right  to  receive  the  rents  and  profits  du- 
ring the  coverture.     Gray  v.  Mathis,  7  Jones,  502. 

See  (Executors  and  Administrators — Of  their  liability  to  leg- 
atees and  next  of  kin,  7.) 


HUSBAND  AXD  WIFE.— IV.-- V.  703 

IV,       CONVEYANCE  OF  REAI,  ESTATE  TO  IIUSB.AND  AND  ^VIFE. 

1.  Where  a  conveyance  of  land  is  made  to  husband  and  wife, 
they  do  not  take  interests  as  joint  tenants  or  tenants  in  common, 
but  they  take  estates  in  fee  by  entireties,  and  not  by  moieties; 
and  the  husbaiul  cannot,  by  his  own  conveyance,  divest  the  wife's 
estate,  but,  on  her  surviving  him,  she  is  entitled  to  the  whole 
estate.     Needhcan  v.  Branson,  5  Ired.,  42(1 

2.  A  conveyance  of  land,  to  a  husband  and  his  wife  and  tlieir 
heirs,  vests  the  entirety  in  each  of  them,  and,  upon  the  death  of 
eitlier,  the  survivor  takes  the  Avhole  in  severalty.  Woodford  v. 
Hkjly,  1  Winst.,  237. 

See  (Husband  and  Wife — Husband's  interest  in  his  wife's  es- 
tate, cV:c.,  ID.) 

v.       CONKEYANCES  BY  IlCSBAND  AND  -WIFE. 

1.  It  must  appear  that  a  deed  from  husbtind  and  wife  was  ac- 
knowledg-ed  bv  the  husband,  as  well  as  the  wife.  JVItitehurst  v. 
Binifer,  2  Haf.,  401,  (004.) 

2.  The  privy  examination  of  a,  feme  covert,  as  to  the  execution 
of  a  deed,  cannot  be  proved  by  parol  Harrell  v.  Elliott,  Tay., 
189,  (^6.)     S  C,  2  Hay.,  68,  (236.) 

3.  On  a  deed  from  husband  and  wife,  there  w-as  a  certificate 
endorsed,  '•  that  the  wife  appeared  in  open  court  and  acknowl- 
edged the  deed  before  the  court,  was  privately  examined,  and 
said  it  was  executed  freely  and  Avithout  compulsion,"  and  on  the 
minutes  of  the  court  there  was  an  entry  that  the  deed  "W'as  ac- 
knowledged;" and  it  was  registered.  Held  that  it  must  be  pre- 
sumed to  have  been  acknowledged  by  the  husband,  though  not 
so  expressly  stated.     Hunter  v.  Bryan,  2  Murph.,  178. 

4.  The  deed  of  a  feme  covert,  without  a  private  examination  as 
directed  by  act  of  as.^embly,  is  a  mere  nullity  and  void;  and,  to 
give  validity  to  her  deed,  it  must  appear  that  her  private  exam= 
illation  has  been  had  pursuant  to  the  act;  if  it  appear  by  the 
clerk's  certificate  merely  that  "  the  deed  was  acknowledged  in 
open  court,  and  ordered  to  lie  registered,"  a  private  examination 
will  not  be  presumed  from  such  certificate.  Bobinson  v.  Barfitld^ 
2  Murph.,  390.     (See  liev.  Code,  ch.  37,  sec.  8,  and  following.) 

5.  By  th(^act  of  1715,  as  explained  and  amended  by  the  act  of 
1751,  a  deed  to  convey  the  lands  of  a  feme  covert  must,  except 
in  case  of  her  inability  to  attend,  be  acknowledged  by  the  hus- 
band and  wife  in  open  court,  and  proof  of  the  execution  by  wit- 
ness is  not  sufficient.  Under  these  acts,  the  proper  mode  to  bar 
the  wife,  wdren  she  is  able  to  attend,  is  for  the  husband  andAvif« 
to  acknowledge  the  deed  personally  in  open  court,  and  then  lor 
one  of  the  court  to  take  the  private  examination  of  the  wife. 
Buryeis  v.  Wilson,  2  Dev.,  306. 


704  HUSBAND  AND  WIFE.— V. 

G.  When  the  wife  cannot  attend,  the  deed  must  be  first  proved 
as  to  the  husband,  and  then  a  commission  issued  to  two  or  more 
commissioners  to  take  the  acknowledgment  and  privy  examina- 
tion of  the  wife.     Ibid. 

7.  Wiiere  a  justice  of  the  court  was  ordered  to  take  the  private 
examination  of  the  wife,  before  the  deed  was  proved  as  to  either 
the  husband  or  the  wife,  who,  upon  making  his  report,  proved 
the  execution  of  the  deed  by  the  husband  and  wife,  and  also 
certified  as  to  her  private  examination,  held  that  the  deed  was 
inoperative  and  did  not  bar  the  heirs  of  the  wife.     Ihid. 

<S.  The  deed  of  a/cw?e.  covert  does  not  bind  her,  when  her  pri- 
vate examination  was  taken  under  a  commission  by  one  commis- 
sioner alone,  and  when  slie  was  neither  a  resident  of  another 
county,  aged  nor  infirm.     Barfield  v.  Combs.,  4  Dev.,  514. 

9.  Where  it  did  not  appear,  either  in  the  order  for  a  commis- 
sion to  take  the  private  examination  of  a  feme  covert,  or  in  the 
commission  itself,  that  she  was  an  inhabitant  of  another  county, 
(jr  so  aged  or  infirm  as  to  be  unable  to  travel  to  court,  it  ivas  heJ^  J 
that  the  deed  was  inoperative  to- convey  the  wife's  interest  in  the 
land.     Feimer  v.  Jasper,  1  Dev.  and  Bat.,  34. 

10.  It  seems  that  it  must  appear  that  tlie  commission  and  the 
certificate  of  the  commissioners  were  retTirned  to  the  court,  ap- 
proved and  ordered  to  be  registered,  or  the  deed  Avili  be  invalid! 
as  to  the  wife's  estate  in  the  land.     Ihid. 

11.  A  certificate  of  commissioners  appointed  by  another  state 
to  take  the  private  examination  of  a  /one  covert^  touching  the 
free  and  voluntary  execution  of  her  deed,  which  states  merely 
that  she  "  acknowledged  the  same  to  be  her  act  and  deed  in  due 
form,"  is  not  a  compliance  Avith  the  act  of  1810,  which  reipiires 
a  certificate  of  her  acknowledgment,  that  she  executed  the  deed 
freely,  and  "  doth  voluntarily  assent  thereto."  Lucas  v.  Cohbs, 
1  Dev.  and  Bat.,  228.     (See  Rev.  Code,  ch.  37,  sec.  5.) 

12.  An  order  that  the  deed  of  a  feme  covert  residing  in  an- 
other state,  with  the  accompanying  com  mission,  and  certificates, 
be  registered,  is  not  conclusive  that  all  the  requirements  of  the 
statute  have  been  complied  with;  and  the  omission  of  all  or  any 
of  them  may  be  shown,  when  the  deed  is  offered  in  evidence 
upon  any  trial.     Ibid. 

13.  The  deed  of  a  feme  covert  is  void  at  common  laM'-.  and  can 
only  be  eflectual  Avhen  execDted  according  tc  our  acts  of  assem- 
blymen that  subject.  By  these  acts  the  deed  is  to  be  first  ac- 
knowledged or  proved, 'both  as  to  husband  and  wife,  and,  then, 
if  she  is  a  resident  of  another  county,  or  unable  to  attend  Irom 
age  or  infirmity,  a  commission  may  be  issued  to  take  her  pri- 
vate examination,  either  by  a  judge  or  the  county  court;  and 
when  her  examination  preceded  the  probate,,  the  deed  was  held 
to  be  inoperative.     Sutton  v.  Sutton,  1  Dev.  and  Bat.,  582. 

14.  Either  a  judge  out  of  court,  or  the  county  court  in  sesS'ion 


HUSBAND  AND  WIFE.— V.  705- 

may,  upon  being  satisfied  of  the  wife's  inability  to  attend  for  a 
privv  examination,  order  a  commission  to  issue  for  taking  it. 
Ibid. 

15.  Where  neither  the  certificate  of  the  commissioners,  ap- 
pointed to  take  the  private  examination  of  a  feme  covert.,  upon  a 
deed  made  by  her  and  her  husband,  nor  any  record  produced, 
show  that  she  was  prvately  examined,  the  deed  is  void  as  to  her. 
Ives  V.  Saivyei\  4  Dev.  and  Bat.,  51. 

16.  Where'a  commission  issued,  by  order  of  a  county  court,  to 
take  the  private  examination  of  a /bvie  covert  as  to  her  execution 
of  a  deed,  the  recital  in  the  commission  that  "  it  has  been  repre- 
sented to  our  said  court  that  INI.  W.  (the  feme  covert.,)  is  indis- 
posed, so  that  she  cannot  travel  to  our  said  court,"  &c.,  is  as  ef- 
fectual as  if  the  same  recital  had  been  made  in  the  order  of  the 
court  directing  the  commission  to  issue.  And  the  words  "  in- 
disposed, so  that  she  cannot  travel,"  &c.,  taken  in  reference  to 
the  subject  matter, must  mean  "  unable  to  travel  from  siskness." 
Skinner  v.  Fletcher,  i  Ired.,_  313. 

17.  Where  the  commissioners  certified  that  they  took  '-the 
private  examination  "  of  the  feme  covert,  and  that  she  acknowl- 
edged that  "  she  executed  the  deed  without  any  compulsion  from 
her  husband  or  any  other  person,"  this  is  suffteient,  without  say- 
ing that  she  was  examined  "privily  and  apart  from  her  husband." 
On  the  subject  of  the  examination  of  femes  covert,  as  to  the  exe- 
cution of  deeds,  the  phrases  "privy  examination,"  "private 
examination,"  and  "examination  separate  and  apart  from  her 
Inisband,"  are  indifferently  used  in  our  acts  of  assembly.     Ibid. 

18^  A  deed  of  husband  and  wife,  dated  1st  i\larch,  1834,  was 
oftered  in  evidence,  and  to  prove  the  due  execution  of  the  deed 
by  the  wife,  a  commission  issued  by  the  coui't  to  two  justices  to 
take  the  private  examination  of  the  wife,  dated  17th  February, 
1834,  reciting  that  a  deed  had  theretofore  been  executed  by  the 
husband  and  wife,  and  authorizing  the  justices  to  take  the  private 
examination,  together  with  tlie  return  of  the  justices  endorsed 
on  the  deed  of  1st  March,  1834,  was  offered  in  evidence,  it  teas 
held  that  the  deed  of  the  1st  March,  1834,  was  not  the  deed  in- 
tended to  be  submitted  to  the  commissioners,  and  that  their 
certificate  endorsed  on  that  deed  was  m.ade  Avithout  authority, 
and  was  therefore  void,  and  that,  of  course,  the  deed  did  not  pass 
the  title  of  the  wife.     Rich  v.  Beeding,  2  Ired.,  240. 

19.  Where  a  deed  from  husband  and  wife,  for  the  real  estate  of 
the  wife,  had  on  it  only  the  following  certificate  from  the  clerk 
of  the  county  court,  as  to  its  execution,  to  wit:  "the  private 
examination  (jf  H.  J.,  wii'e  of  J.  C.  J.,  taken,  by  C.  A.  H.,  a  mem- 
ber of  the  court,  Avhich,  being  satisfactory,  is  ordered  to  be 
recorded,"  and  signed  "C.  A.  H.,  J.  P.,"  and  a  proof  of  the  exe- 
cution of  the  deed  by  the  subscribing  witness  and  an  order  of. 
3* 


70G  HUSBAND  AND  WIFE— A". 

registration,  it  iims  field  tliat  the  wife's  iutei-est  in    the  land  did 
not  pass.     Jones  v.  Lewis,  8  Ired.,  iO. 

20.  Where  a  deed  was  acknowledg-ed  in  the  connty  coiu-t  by 
husband  and  wife,  and  two  justices  took  the  private  examination 
of  the  wife.,  and  reported  the  san^e  to  the  court,  and  the  court 
acted  upon  the  report,  it  teas  held  that  the  inference  was  irresis- 
tible, that  tlie  two  justices  were  members  of  tJie  court  appointed 
for  tluit  purpose,  though  no  special  order  of  appointment  ap- 
peared.    Etiieridge  v.  Ferehee,  9  Ired.,  ?>12. 

21.  It  is  sufiicient,  if  the  certificate  of  the  private  examination 
of  the  wife  state  that,  upon  such  examination,  she  declared  that 
she  had  voluntarily  executed  the  deed,  without  saying-  tliat  ''  she 
doth  now  voluntarily  assent  thereto."     Ibid. 

22.  If,  upon  her  privy  examination,  the  wife  state  that,  though 
she  was  willing  to  convey  when  she  executed  the  deed,  yet  she 
had  changed  her  mind  and  was  then  unwilling,  her  assent  can- 
not 1)0  certified.     Hid. 

2;i  It  is  immaterial  whether  the  acknowledgm'ent  or  the  pri- 
vate examination  be  first  recorded.     Ibid. 

24.  Where  a  deed  from  husband  and  wife  had  on  it  the  follow- 
ing entries:  "State  of  N.  C,  Currituck  county,  Feb.  Term,  lXo2, 
personally  appeared,  L.  C,  wife  of  J.  C,  and  in  open  court 
acknowledged  that  she  assigned  the  within  deed  of  her  own  free 
Avili,  without  any  constraint  whatever.  Let  it  be  registei-ed. 
(Signed)  W.  D.  B."  '-This  deed  from  J.  C.  and  L.  to  S.  R,  Avas 
exhibited  and  proved  in  open  court  by  J.  L.  S.,  the  subscribing 
witness.  At  the  same  time,  L.  C,  the  feme  covert,  persoiudly 
appeared  in  open  court,  and  being  privately  examined  by  W.  D. 
I).,  one  of  the  court  appointed  for  that  purpose,  who  reported 
that  the  said  L.  C.  acknowledged  the  execntion  of  the  said  deed 
of  her  own  accord,  and  witliout  any  constraint  whatever.  &q: 
On  motion,  ordered  to  be  registered.  (Signed)  S.  Hall,  C.  C.  C." 
And  there  was  also  the  following  entry  on  the  minute  docket 
of  the  same  term:  "A  deed  from  J.  C.  1).  and  wife  L.,  to  JV.  C 
E.,  was  proven  as  to  J.  C.  and  wife,  by  the  oath  of  J.  S.,  a  witness 
thereto,  and  her  private  examination  taken  in  open  court  and 
ordered  to  be  registered."  It  icas  held  that  these  entries  did  not 
show  that  the  wife  had  been  privily  examined,  as  recpnred  by 
law.     FAheridge  v.  Js)bee,  9  Ired.,  35;-5. 

2').  Upon  the  probate  of  a  deed  for  land  by  husband  and  wife, 
the  Avife  residing  in  another  state,  a  connnission  to  take  the  pri- 
vate examin.'ition  of  the  wife  may  issue  from  tlie  coiu't  of  the 
county  where  the  land  lies,  under  the  act  of  ]7r)b_  In  the  lie- 
vised  Statutes,  by  a  misprint,  the  Avord  "conntry, "  in  the  act  of 
1751,  is  chang-ed  to  the  Avord  "county,  "  but  from  the  context, 
the  construction  of  the  lievised  Statute  must  be  the  same  as  that 
(,t  the  act  of  1751.     Fiercer.  Wanett,  10  Ired.,  44G.     (See  liev. 


HUSBAND  AXD  WiFE— V.  707 

Code,  cli.  37,  sec.  9,    where  the  words  "country  or  county"  are 
inserted.) 

•2\).  In  order  to  be  allowed  to  introduce  in  evidence  the  deed 
of  a  married  woman,  the  followin.^  facts  were  proved:  "That 
upon  the  record  of  X.  H.  county  court,  at  August  term,  1818, 
there  was  an  entry  in  these  words:  Ordei'ed  tliat  J.  M,  C.  and  D. 
J.  be  a})pointed  to  take  the  private  examination  of  S.  P.,  wife  of 
P.  P.,  t(_)uclung-  her  free  execution  of  a  deed  executed  bv  them 
to  Samuel  Potter,  dated  July  :^lst,  1818.    On  tlie  10th  of  August 
the  clerk  issued  a  commission  to  the  said  J.  M.  C.  and  D.  J.,  as 
residents  of  X.  H.,  to  take  privy  examination  of  the/eme,  recit- 
ing- that  the  deed  had  been  proved  in  tlie  county  court,  and  that 
it'liad  been  represented  to  the  court,  that  the  said  8.  P.  could 
r.i>t  travel,  Szc,  and  upon  it  the  commissioners  on  the  same  day 
returned  the  private  examination,"  and  then  follows  an  entry  on 
tlie  commission,  that  the  execution  of  the  deed  was  proved  by 
-.'    M.  C,  Avho,  and  1).  J.,  are  the  subscribing  witnesses;  upon 
•>.i''h  it  was  registered.     It  loas  held  that  this  Avas   not  sufH- 
»;,'nt  proof  of  the  execution  of  the  deed  by  the  wife.     Ibid. 
■Si.  A  certificate  of  probate  on  the  deed  of  a  feme  covert  set 
itb,  that  the  deed  "was  exhibited  in  open  court  and  the  exe 
ei  ttion  thereof  by  (the  husband)  was  proved  by  T.  S.,  (a  subscribing 
witness,)  and  acknowledged  by  (the /ewe  covert)  wlmn  on  motion 
in  open  court  (L.   S.,   Esq.,)  one  of  the  presiding  justices  was 
aT:)pointed  to  take  the  private  examination  of  (the    said  feme 
r  r.-erl)  as  to  her  consent  in  signing  the  said  deed,  who  reported 
':0  acknowledged  to  have  signed  it  of  her  own  free  will  and 
•>'()rd,  witliout  any  compulsion  from  her  said  husband.   Ordered 
'■  I  be  recorded;"  and  it  icas. held. that  the  probate  was  sufficient 
'  make  the  deed  valid  against  the  wife.     Beckwith  v.  Lamb,  18 
::ed.,  400. 
'2!<.  A  copy  of  the  proljate  of  a  deed,  by  tlie  subscribing  wit- 
ss,  also  of  the  order  made  by  tlie  county  court  to  appoint 
:   .iiimissioners  to  take  the  private  examination  of  a  /"erne  covert, 
\'.';is  inserted  on  the  deed  itself,  as  also   was  the  report  of  tlie 
'•^iinmissioners,  which   were  duly  registered,  thougii  no   other 
iiimissiou  issued  to  them  and  no  other  report  was  made  to  the 
I'.vt;  and  it  was  Jicld  that  tliis  was  a  substantial   compliance 
;th  thy  act  of  assembly,  and  that  the  deed  was  duly  authen- 
ij'uted.      HatJianrq/  v.  I)are/rport„  2  Jones,  l')2. 

•2';).  A  deed  made  by  a  husband  and  wife  for  the  wife's  land,  to 
'  !!e  who  died  previously  to  the  probate  and  privy  examination 
(  i'  the  wife,  is  good,  and  relates  back  to  the  time  of  its  execu- 
tion, provided  that,  after  the  bargainee's  death,  it  was  duly  ac- 
Icnowledged,  the  i)rivy  examination  of  the  wife  taken,  and'  the 
deed  registered.     Ji<dl  v.  Bvnlrr,  2  Jones,  440. 

oO.  Where  a  husband  professed  to  convey,  in  fee  simple,  land 
v>-hich   belonged  to   his  wife,  by  a  deed  in  which  he  only  was 


708  HUSBAND  AND  WIFE.— Y. 

mentioned  as  the  grantor,  and  after  the  delivery  of  the  deec" 
his  wife  signed,  and  sealed  it,  it  was  held  that  she  was  not  thereby 
made  a  party  to  the  deed,  and,  consequently,  that  her  interest 
in  the  land  was  not  thereby  conveyed.  Kerns  v.  Peeler,  4 
Jones,  226. 

ol.  Where  a  certificate,  on  the  back  of  a  deed  by  a  husband 
and  wife  for  the  wife's  land,  purported  to  be  an  acknowledgment 
in  the  county  court,  and  an  examination  ot  the  wife  before  some 
member  of  that  court,  but  was  subscribed  by  the  name  of  a 
judge  of  the  superior  court,,  i^  urns  held  that  the  certificate  was 
inefieetive.     Barbee  v  Taylor,  6  Jones,  40.         _ 

32.  Where  there  was  an  order  to  take  the  private  examination 
of  a  feme  covert,  and  there  was  also  a  probate  of  the  deed  as  to 
the  husband  by  a  subscribing  witness,  and  a  commission,  and  its 
return,  certifying  that  tlie  commissioners  had  taken  the  privy 
examination,  and  that  the  wife  had  declared  that  she  executed 
the  deed  freely  and  voluntarily,  and  an  order  of  registration,  all 
appearing  to  have  been  done  on  the  first  day  of  the  court,  it  teas 
held  that  it  must  be  taken  that  the  proof  of  the  deed,  as  to  the 
husband,  occurred  before  the  order  and  commission  for  examin- 
ing- the  wife — especially  as  the  commission  recited  that  the  deed 
had  been  proved,  and  that,  consequently,  the  probate  and  privy 
.'T^xamination  were  sufficient.     Pierce  v.   Wanett,  6  Jones,  1()2. 

33.  Where  a  feme  covert,  having  a  life  estate  only  in  land, 
made  a  deed  purporting  to  convey  it  in  her  own  name,  her  hus- 
band not  being:  named  as  a  party  to  the  deed,  though  he  affixed 
his  signature  to  it  along  with  his  Avife,  it  was  held  that  it  was 
void  as  to  her,  on  account  of  the  coverture,  and  as  to  him,  be- 
cause he  was  not  a  party  to  it;  and  that  no  privy  examination 
^•ould  give  validity  to  such  an  instrument.  Gray  v.  MatMs,  7 
Jones,  502. 

34.  Where  the  intention  of  the  parties  to  a  deed  is  manifest 
m  its  face,  the  court,  in  giving  a  construction  to  doubtful  pro- 
visions, will,  if  possible,  effectuate  such  intention.  Hence,  where 
a  wife,  after  marriage,  supposing  the  Avhole  interest  in  her  land 
was  in  her,  made  a  conveyance  to  a  trustee  for  her  sole  and  .'  ep- 
arate  use.  in  which  the  husband  was  mentioned  as  a  party,  and 
executed  it  as  a  party,  and  he  also,  by  various  clauses,  manifested 
a  concurrence  in  her  act,  but  did  not  profess  to  convey  any  es- 
tate, it  loas  held  that  the  sum  of  ten  dollars,  recited  in  the  deed 
HS  having  been  paid  to  the  wife,  was,  in  legal  effect,  paid  to  him 
also,  and  that  this  sum  raised  a  use  from  the  husband  to  the  trus- 
tee, which  was  executed  by  the  statute  of  uses,,  and  thus  his  in- 
terest in  the  land,  as  well  as  that  of  the  wife,  was  transferred  tc) 
tlie  trustee.     Barnes  v,  Hayharger,  8  Jones,  76. 

See  (Estoppel— By  Deed,  32-36-37.)  (Limitations— As  to 
i:ea)  estate,  19.) 


HUSBAND  AND  WIFE.— VI.  709 

VI.       OF  MARRIAGE  SETTLEMENTS  AND  AGREEMENTS. 

1.  The  act  of  1785,  which  reqmresthe  registration  of  marriage 
contracts,  makes  tliem  void  against  creditors  only,  if  it  be  omit- 
ted. Richardson  v.  Fleming,  2  Car.  L.  E.,  455,  (341.)  (See  Rev. 
("ode,  oh.  37,  sec.  24.) 

2.  Articles  made  in  contemplation  of  marriage,  whereby  the 
intended  husband  "  sells  and  assigns  "  to  a  trustee  all  the,  right 
in  slaves  belonging  to  the  intended  wife,  "  which  he  by  opera- 
tion of  law  may  thereafter  have,"  do  not  pass  a  title  in  the  slaves 
to  the  trustee^  but  are  merely  executory,  and  bind  the  hus- 
l)and,  after  marriage,  to  make  the  necessary  assurances  to  carry 
•them  into  effect.    "Cox  v.  3fiirphy,  2  Dev.  and  Bat.,  257. 

3.  The  act  of  1829,  which  enacts  that  no  deed  of  trust  or  mort- 
gage shall  be  valid  to  pass  property,  as  against  creditors,  but 
from  the  registration  thereof,  embraces  only  those  deeds  in  trust 
which  are  intended  as  securities  for  debts,  and  does  not  include 
deeds  of  settlement  between  husband  and  vnie,  in  which  the 
property  is  conveyed  to  a  trustee  in  trust  for  the  wife ;  the  deeds 
of  the  latter  class'^being  provided  for,  as  to  their  registratioUv  in 
the  29tli  section  of  the  Eevised  Statutes.  Savnders  v.  FerriP,  I 
ired.,  97.     (See  Rev.  Code,  ch.  37,  sec.  22  and  24.) 

4.  A  post-nuptial  settlement,  made  between  husband  and  wife, 
in  which  a  greater  interest  in  the  property  is  secured  to  the  wife 
than  was  provided  for  in  the  marriage  articles,  is  void  as  against 
creditors,  under  the  acts  of  13  Eliz.  and  1715.     Ibid.     (See  Rev! 

ode,  ch.  50,  sec.  1.) 

5.  No  ante-nuptial  agreement  or  transaction  between  husband 
nd  wife  can  he  proved  by  *parol,  to  support  a  settlement  made 
iter  marriage,  to  the  obstruction  of  the  husband's  creditors ;  for 
iieactof  1785,  which  requires   '•  all  marriage  settlements  and 

her  marriage  contracts"  to  be  registered  within  a  particular 

■me,  to  make  them  valid  against  creditors,  must  necessarily  ex- 

'ude  all  such  contracts  as  in  their  nature  do  not  admit  of]regis- 

■ation.     Ibid.     (See  Rev.  Code,  di.  37,  sec.  24  and  25.) 

G.  Marriage  settlements  must  be  proved  within  six  months  after 

iieir  execution,  before  a  judge  either  of  the  superior  or  supreme 

'•durt,  or  before  a  court  of  record;  otherwise  they  will  be  void  as 

to  creditors.     Probate  before  the  clerk  of  the  county  court,  as  in 

the  case  of  deeds  in  trust,  will  not  be  sufficient ;  and  an  uuau- 

t'lorized  registration  is  not  even  notice.     Smith  v.    Castrioc,  5 

Ired.,  518.     (It  seems  they  may  now  be  proved  before  the  clerk 

of  the  countv  court,  or  his  deputv.     Sec  Rev.  Code,  ch.  37,  sec. 

2  and  24,)    "^ 

7.  A  married  woman  cannot  make  a  contract  with  her  hus- 
1  land,  except  through  the  intervention  of  a  third  person,  to  whom 
the  duty  ofeiiforcing.it,  in  liei-  behalf,  belongs;  and  it  miast  be 


710  HUSBAND  AND  WIFE.— A^.— VII. 

by  a  deed  to  which   she  is   a  party.     Barhee  v.  Armstead,  10 
Ired.,  530.  _ 

See  (Eegistration,  35-3()-37.) 

YII.   OF  ACTIONS  BY  ASD    AGAINST  HUSBAND  AND  WIFE. 

1.  If  a,/eme  covert  sne  in  her  own  name,  for  money  earned  by 
her  during-  coverture,  she  shall  recover,  if  her  marriage  be  not 
pleaded  in  abatement,  as  advantage  cannot  be  taken  of  it  on  a 
motion  lor  anon  siiit.  Qucere  bv  Haywood,  NeivtonY.  Bohinsdn, 
2  Play.,  121,  (285.)     S_.  C.  Tay.,^72,  (50.) 

'  2.  Husband  and  wife  must  join  in  detinue  for  her  slave,  de- 
tained before,  and  at  the  time  of  the  marriage.  Jolmston  v. 
Pasteur,  Conf  Kep.,  464,  (520.)  S..  C,  2  Hay.,  406,  (495.)  S.  P.,. 
Norfleet  v.  Harris,  Conf  Rep.  517,  (564,) 

3.  Where  the  wile  was  an  infant,  when  the  act  of  1(S06,  relative 
to  parol  gifts  of  slaves  was  passed,  and  became  covert  during  her 
infancy,  the  act  cannot  be  set  u]>  against  a  suit  brought  by  her 
husband  and  herself;  and  in  such  action  they  may,  and  ought 
to  join.     Allen  v.  Gentry,  2  Car.  _L.  Pi.  GOJ),  (411.) 

4.  Where  a  defendant  in  detinue  holds  adversely  a  chattel,, 
claimed  under  a  feme  before  marriage,  the  husband  and  Avife 
must  join;  but  where  the  defendant  is  a  bailee,  the  right  of  tlie 
husband  accrues,  and  is  complete,  upon  the  marriage,  and  the 
possession  of  the  bailee  is  hispossession,  and  consequently  he  must 
sue  alone.  Armstirmq  v.  Simonion,  2  Murph.,  351,  S..  C.  N.  C. 
Tei::.  R.,  266,  (61)0.) 

5.  Husband  and  wife  cannot  join  hi  detinue  for  a  chattel,  if 
the  liusbandhad  actual  or  constructive  possession  after  marriage, 
for,  by  the  marriage  and  such  possession,  the  whole  vests  exclu- 
sively in  the  husband.     Spiers  v  Alexander,  1  Hawks,  67. 

6.  The  husband  of  a  feme  cestui  que  trust  cannot  recover  lier 
interest  in  slaves,  held  by  a  trustee  under  a  deed  in  trust,  to  be 
divided  between  her  and  others,  without  joining  his  wife.  Gillis 
V.  BIcKay,  4  Dev.,  172. 

7.  Where  a  person  has  been  admitted,  on  motion,  under  tlie 
act  of  1798,  a  party  to  a  suit  as  the  husband  of  a  feme  sole,  by 
whom  the  suit  had  been  instituted,  it  is  too  late  afterwards  for 
the  defendant  to  object  to  the  validity  of  the  raamage,  except 
on  an  application  for  rescinding  the  order  of  admission  as  im- 
providently  made.  AVhile  such  order  remains-  in  force,  no  evi- 
dence can  be  received,  on  the  trial  of  the  cause  upon  the  issues, 
for  the  purpose  of  impeaching  the  validity  of  the  marriage.  The 
o1)jection  should  have  been  made,  when  the  motion  for  admission 
was  submitted  to  the  court,  and  the  question  then  triecL  Hohhs 
v.  Bush,  2  Dev.  and  Bat.,  508. 

8.  If  a  woman  sue,  and  afterwards  marry,  and  the  marriage  is 
not  pleaded  in  ii\yd.ivvaQ.Tit  puin  darrein  continuance,  she  may  have 


HUSBAND  AND  WIFE.— YII.-YTIL  711 

judgment,  and  it  cannot  be  reversed  for  error.     Johnson  v.  E^uj- 
land,  4  Dev.  and  Bat.,  70. 

il.  The  husband  has  entire  control  over  a  judgment  confessed 
to,  or  obtained  by,  his  wife  during  coverture,  and  the  proper  Avay 
for  him  to  proceed  to  enforce  it  is  by  making  himself  a  party  by 
sci  fa..,  as  in  case  of  a  judgment  obtained  bv  a  feme  covert  dum 
sola,  who  had  married  before  execution.     Ibid 

10.  Whenever  a  suit  will  survive  to  a  wife,  she  may  be  joined 
with  her  husband  in  the  action.      JVestv.  Tilghman,  'il  Tred.,  IGo. 

11.  An  action  upon  the  administration  bond  of  an  adminis- 
trator, for  a  distributivti  share  belonging  to  a  married  woman, 
must  be  brought  on  the  relation  of  husband  and  wife,  though 
the  husband  mav  have  assigned  his  wife's  share  to  a  third  person, 
^Yafev.  C/rtrZ-,  iblred.,  172. 

12.  Where  the  husband  has  possession  of  the  wife's  land,  after 
issue  born,  case,  in  the  nature  of  waste,  is  the  proper  remedy  for 
an  injury  to  the  inheritance  by  cutting  timber  trees,  and  should 
be  iu  the  name  of  the  husband  and  wife  jointly.  But,  for  an 
injury  to  the  crop,  he  must  sue  alone,  and  the  statute  of  limita- 
tions bars  the  action  after  three  years.  The  rule  is,  where  the 
husband  may  sue  alone,  or  may  join  his  wife,  the  statute  of  limi- 
tations bars;  but  when  he  imtst  join  his  wife,  the  statute  does 
not  bar,  for  it  is  her  action.      WiUiains  v.  Lanier,  Busb.  30. 

lo.  For  a  trespass  to  the  land  of  the  wife,  before  marriage,  the 
wife  is  a  proper  party  with  the  husband,  in  a  suit  for  the  same. 
Hair  V.  Melvin,  2  Jones,  59. 

14.  A  husband  can  maintain  an  action  of  ejectment  on  a  sep- 
arate demise  by  himself,  though  he  claims  under  a  deed  made  to 
himself  and  his  wife.     Topping  v.  Sadler,  5  Jones,  857. 

15.  Where  a  husband  and  wife  joined  in  a  demise  in  an  action 
of  ejectment,  dated  before  they  were  married,  it  was  held  that  the 
action  could  not  be  sustained,     Elliott  \.  Newhold,  6  Jones,  9. 

IG.  For  an  injury  to  the  wife's  land  after  coverture,  she  may 
join  with  her  husband  in  an  action  of  trespass,  and  both  husband 
and  wife  may  join  with  other  tenants  in  common,  for  an  injury  to 
their  common  property.     Deans  v,  Jones,  G  Jones,  2o0. 

17.  In  an  action  against  a  fenymanfor  negligence  in  carrying 
the  plaintiffs  wife  across  his  ferry,  whereby  she  was  injured,  it 
is  not  necessary  that  she  should  be  joiiied  as  a  party  plaintitF. 
Crump  V.  BIcKay,  8  Jones,  H2, 

Vni.        HOW  FAR  THE  HUSliAKD  IS  KOUXD  HY    THE    ACTS    AND  AD.MISSIOXS    OF 
HIS  WIFE,   UEFORE  AND  AFTER  MARRIAGE. 

1.  Where  the  wife  is  the  agent  or  servant  of  her  hus1)and,  her 
acts  and  admissions  against  his  interf  st  are  admissible  in  evi- 
dence.    HtKjhes  V.  Stokes,  1  Hay.,  872,  (427.) 

2.  Husband  suing,  as   administrator   of  another   person,  for 


712  HUSBAND  AND  WIFE.— VITI-IX. 

slaves,  is  not  estopped  by  the  deed  of  his  wife,  made  while  sole, 
f'onveying  the  slaves  to  the  defendant.  Millison  v.  Nicliolson, 
Con£  Rep.,  499,  (549.)     S.  C,  2  Hay.,  306,  (494.) 

3.  A  husband  may  shov/  the  idiotcy  of  his  wife  before  covert- 
ure, to  avoid  a  deed  made  by  her  while  she  was  in  that  condi- 
tion.    Ibid. 

4.  The  husband  is  bound  by  the  acts  or  declarations  of  his 
wife,  done  or  made  while  she  is  acting  as  his  agent.  Torrence 
V.  Graham,!  Dev.  and  Bat.,  284. 

5.  A  feme  covert  may  become  an  agent  for  her  husband,  and 
such  an  appointment  as  agent  may  be  inferred  from  his  acts  and 
i'onduct  respecting  her.  When  the  agency  is  to  be  inferred  from 
liis  conduct,  that  conduct  furnishes  the  only  evidence  of  its  ex- 
tent as  well  as  of  its  existence,  and  in  solving  all  questions  on 
this  subject  between  the  principal  and  third  persons,  the  general 
rule  is  that  the  extent  of  the  agent's  authority  is  to  be  measured 
by  the  extent  oi  his  usual  employment.  Cox  v.  Hoffman,  4  Dev. 
and  Bat.,  180. 

6.  The  husband  is  responsible  for  any  injury  done  to  the  prop- 
erty of  another  person,  by  the  negligence,  carelessness  or  unskill- 
fulness  of  his  wife  in  her  performance  of  his  business,  the  wife, 
in  this  respect,  being  considered  as  his  servant.     Ibid. 

7.  If  a  husband  and  wife  live  separate,  and  a  person,  having  no- 
tice that  the  husband  does  not  hold  himself  liable  for  any  debts 
she  may  contract,  trusts  lier  even  for  necessaries,  he  cannot  re- 
cover for  them  against  the  husband,  unless  he  can  show  that  the 
wife  had  a  good  cause  for  the  sejjaration.  Pool  v.  Everton,  5 
Jones,  241. 

IX.       OF  THE  LIABILITY  OF  A  WIFE  FOR  IIIS  ACTS  DURING  COVERTURE. 

"1.  A  plaintiff  cannot  convert  an  action  founded  on  contract 
into  one  for  a  tort,  so  as  to  charge  a/eme  covert  defendant.  To  do  so  , 
the  tort  complained  of  must  be  an  actual  trespass.  Therefore, 
where  the  plaintiff  hired  to  the  wife  of  A  a  horse,  she  acting  as 
the  agent  of  her  husband,  and  the  horse  was  injured  by  immod- 
erate driving,  and  the  action  was  br()ught  against  the  husband 
and  w^ife  jointly,  but  abated  as  to  the  former  by  his  death,  it  was 
held  that  the  action  did  not  survive  against  the  wife.  Barnes 
V.  Harris,  Busb.,  15. 

2.  Where  a  feme  covert,  having  a  separate  estate,  but  living 
with  her  husband,  contracted  debts  without  the  concurrence  of 
her  trustee,  and  without  charging  them  specifically  on  her  sep- 
arate estate,  it  loas  held  that  she  was  not  liable  to  pay  them,  and 
•that  her  promise  to  do  so,  after  the  death  of  her  husband,  was 
•r^'ithout  consideration  and  void.     Felton  v.  Reid^  7  Jones,  .269.. 


IDIOTS  AXD  LUXATICS  71  :> 


IDIOTS  AND   LUNATICS. 

1.  The  proper  finding  in  an  inqnisition  of  kmacy  is  that  the 
party  is  an  idiot  or  huiatic,  though  it  may  answer  to  find  that 
he  is  of  "insane  mind,"  but  not  that  he  is  "incapable  of  manag- 
ing his  aftairs,"  which  is  void.     Armstrong  v.  Short,  1  Hawks,  11. 

2.  No  person  is  entitled  to  a  traverse  to  an  inquest  of  office  in 
its  proper  and  technical  sense,  under  the  Stat.  2  Ed.  6,  so  as  to 
vacate'the  otfice,  unless  he  be  interested  at  the  time  of  filing  it. 
But  such  an  inquest,  when  offered  in  evidence,  is  only  presump- 
tive proof  against  all  persons  not  parties  or  privies;  held,  there- 
fore, that  in'  del)t  on  a  bond  given  after  an  olSce  was  found, 
where  an  inquisition  was  pleaded  for  the  defendant,  the  plain- 
tifli"  might,  in  his  replication,  traverse  the  truth  of  it,  and  upon 
the  trial  give  evidence  in  support  of  his  traverse.     Ibid. 

3.  An  inquisition  of  lunacy,  Avhich  appeared  to  have  been 
taken  by  the  coroner  and  twelve  freeholders,  and  returned  to 
the  court,  and  by  it  confirmed,  and  from  which  it  did  not  appear 
that  the  lunatic  was  present,  was  offered  in  evidence  to  support 
the  plea  of  72on  comjios  mentis,  and  it  was  held,  that  having  been 
receive  by  the  county  court  as  an  inquest,  and  a  guardian  hav- 
ing been  appointed  under  it,  it  was  admissible  as  the  record  of 
an  inquest.     Arrington  v.  Short,  3  Hawks,  71. 

4.  The  proceedings  on  an  inquisition  of  lunacy  are  not  void, 
because  no  affidavit  accompanied  the  petition  to  the  court,  nor 
because  the  alleged  lunatic  was  not  present  at  the  time  of  taking 
the  inquest,  nor  because  the  jury,  in  their  inquisition  returned  to 
the  court,  found  that  "he  is  lunatic  and  idiotic,"  they  having  also 
found  that  "  he  is  of  nonsane  memory.'"  The  former  word  should 
be  rejected  as  surplusage.     Bethea  v.  McLennon,  1  Ired.,  523. 

5.  It  is  generally  proper  that  an  affidavit  should  accompany 
the  petition,  but  this  is  a  matter  for  the  discretion  of  the  court 
to  which  the  petition  is  addressed.     Ihid. 

6.  The  alleged  lunatic  has  a  right  to  be  present  at  the  inquest, 
and  if  this  right  be  denied  him,  it  is  good  cause  for  setting  aside 
the  inquisition.  But  where  an  inquisition,  taken  by  order 
of  a  court  of  competent  jurisdiction,  is  returned  to  and  confirmed 
by  the  court,  it  is  to  be  respected  like  other  judgments  of  a  court, 
until  it  be  reversed  or  superseded.     Ibid. 

7.  The  guardian  of  a  lunatic  cannot  bring  an  action  of  eject- 
ment, nor  any  other  action  at  law,  in  his  own  name,  though  the 
guardian  of  an  infant  may  bring  ejectment  in  his  own  name. 
Broolis  V.  Brooks,  3  Ired.,  3<S9. 

8.  A  guardian  of  a  lunatic  may,  by  order  of  the  county  court, 
rightfully  sell  the  personal  property  of  the  lunatic  for  the  pay- 
ment of  his  debts,  provided  there  Ije  no  fraud  in  the  proceeding. 
Howards.  Thomfpson^  8  Ired.,  3G7. 


714  IDIOTS  AND  LUNATICS,    ETC. 

9.  Contracts  with  lunatics  are  not  all  absolutely  void ',  but  sucli 
as  are  fairly  made  with  them  for  necessaries,  or  things  suitable 
to  their  condition  and  habits  of  life,  will  be  sustained.  And 
when  a  person  is  so  insane  as  to  attempt  to  injure  himself,  and 
to  destroy  his  property,  the  services  of  a  nurse  and  guard  fall 
within  the  class  of  necessaries,  as  defined  by  law.  Richardson 
'V.  Stromi,  13  Ired.,  lOB. 

10.  X\\  action  accruing  to  a  lunatic  must  be  brought  in  his 
name,  and  not  in  that  of  his  guardian.  Green  v.  Kornenay^  4 
Jones,  ^Q. 

11.  An  inquisition  of  lunacy  is  not  conclusive  against  a  person 
dealing  Avith  a  supposed  lunatic;  but  he  may  show  that,  at  the 
time  of  the  contract,  such  supposed  lunatic  had  sufficient  ca- 
pacity to  make  it.     Parker  v.  Davis,  8  Jones,  4G0. 


TNCENDrARY  PUBLICAN  TONS. 

1.  The  delivery  of  a  copy  of  an  incendiary  publication  to  OBe 
individual,  with  an  unlawful  intent,  is  a  circulation,  within  the 
prohibition  of  the  act,  Rev.  Code,  ch.  34,  sec.  16.  State  v.  Worth, 
7  Jones,  488.  * 

2.  In  a  prosecution  imder  tlie  act,  it  is  not  necessary  to  aver 
or  prove  that  tlie  forbidden  publication  was  delivered  to  a  slave 
or  free  negro,  or  Avas  read  in  his  presence.     I  hid. 

3.  A  bound  volume,  having  the  tendency  described  iu  the  act, 
is  within  the  meaning  of  it.     Ih'id. 

4.  A  book,  which  denoujjces  slavery  as  worse  than  theft,  and 
as  leading  to  miu'der,  and  proclaims  that  it  must  be  put  an  end 
to,  even  at  the  cost  of  blood,  is  within  the  u^eanini!-  of  the  act,  as 
tending  to  excite  slaves  to  insurrection.     I  hid.. 

See  (Evidence — In  criminal  proceedings  and  indictments,  118.) 


INDECENCY. 

See  (Indictment. — Ftmn  and  matters  relating  thereto,  ?^'2.\ 


INDIAN  LANDS.  715 


INDIAN  LANDS. 

I.  The  act  of  17<So  forbade  entries  or  surveys  to  be  made  of 
certain  lands,  set  apart  for  the  Cherokee  tribe  of  Indians.  In  1791, 
this  tribe,  in  a  treaty  with  the  general  government,  "  relin(]^uish, 
release  and  cede  these  lands."  The  right  of  the  Indian  tribes  to 
lands  is  regarded,  by  the  Euroj^ean  and  American  governments, 
as  a  mere  possessory  right,  and  the  cession  of  tliis'  right  by  the 
Cherokee  tribe  vested  the  right  in  North-Carolina,  and  the  Uni- 
ted States  were  the  agents  for  North-Carolina  for  that  purjiose. 
Strother  v.  Catheij,  1  JMurph.,  162. 

'Z.  The  grant  made  by  the  Governor  in  1717,  to  the  Tnscarora 
tribe  of  Indians,  was  absolute  and  unconditional,  and  did  not 
require  the  residence  of  the  Indians  upon  the  land.  Sacarusa  v. 
Kim/,  2  Car.  L.  E.,  451,  (33(3.) 

3.  The  proviso  in  the  act  of  174S,  being  in  derogation  of  the 
rights  actually  vested  in  the  plaintiffs  (Indians, )  cannot  be  re- 
garded. But  if  the  legislature  of  1748  could  rightfully  superadd 
the  condition  contained  in  the  proviso,  subsequent  legislatures 
had  an  equal  right  to  modify  or  abrogate  ft.  And  the  acts  of 
1778  and  1802  make  a  different  appropriation  of  the  land,  on 
the  happening  of  either  of  the  events  mentioned  in  the  act  of 
1778,  from  tiiat  made  by  the  act  of  1748     Ibid. 

4.  Clierokee  Indians,  in  possession  of  land  within  the  limits  of 
North-Carolina,  reserved  under  the  treaties  of  1817  and  1819, 
made  between  the  United  States  and  the  Clierokee  nation,  are  to 
1)6  considered  as  purchasers  of  the  lands;  the  exercise  of  power 
by  the  commissioners  of  the  United  States  being  legitimate,  and 
the  treaties  having  been  recognized  by  several  acts  of  our  legis- 
lature. The  Indians  need  not  claim  under  a  grant  issued  in  the 
usual  manner,  but  may  derive  title  by  a  special  grant,  such  as 
that  under  which  the  university  claims  escheated  lands,  by  vir- 
tue of  an  act  of  assembly.     Eu-hdah  v.    Wdclt,  3  Hawks,  155. 

5.  Under  the  3d  article  of  the  treaty  of  1819,  between  the 
United  States  and  the  Cherokee  Indians,  the  particular  Indians, 
residing  within  the  limits  of  North-Carolina,  to  whom  reservations 
in  fee  simple  were  made,  had  a  riglit  to  alienate  the  tracts  reser- 
ved as  they  thought  proper,  prior  to,  and  independent  of,  any 
act  of  the  State  legislatuTe.     BelJc  v.  Love,  1  Dev.  and  Bat.  65, 

6.  The  condition,  annexed  to  the  reservations  under  this  arti- 
cle, does  not  require  a  perpetual  residence  on  the  tracts  reserved, 
but  only  a  notification  ol  mx  intant  to  reside,  which  is  a  condition 
precedent,  and,  when  complied  with,  the  estate  becomes  absolute. 
But  if  this  Avere  otherwise,  an  individual  could  not  treat  the  es- 
tate as  at  an  end,  before  the  State  enforced  a  forfeiture  for  a 
breacli  of  tlie  condition.     Ibid. 

7.  Tlie  right  to   a  reservation  of  land,  granted   by  the  treaty 


71(?  INDIAN  LANDS. 

with  the  Cherokees  in  1837,  to  each  head  of  an  Indian  family, 
ehoosing  to  remain  in  this  state,  does  not  attach  to  the  hind 
ceded  by  .the  treaty  of  1835.     Sutton  v.  Moore,  3  Ired.,  Q)i). 

8.  Under  the  acts  for  the  sale  of  the  Cherokee  lands,  the  pur- 
chaser has  a  right,  upon  the  certificate  of  his  purchase  from  the 
commissioners,  to  institute  an  action  of  ejectment  in  the  name 
<-)f  the  State,  against  any  person  in  possession.  And  the  person 
so  in  possession  cannot  set  up  as  a  defence  to  this  action,  that  he 
had  received  a  deed  from  the  pin-chaser,  which  had  never  been 
registered,  but  which  was  alleged  to  be  lost  or  destroyed,  by  an 
agent  of  the  purchaser.     State  v.  England,  7  Ired.,  153. 

9.  Under  the  act  of  1852,  ch.  169,  entitled  "An  act  to  bring 
into  market  the  lands  pledged  for  the  completion  of  the  Wes- 
tern Turnpike  Koad,"  it  is  the  duty  of  the  entry  taker  to  demand 
and  receive  bonds,  for  the  purchase  money  of  the  land,  before  he 
takes  the  entry.   '  Jarrett  v.  Kinc/fiey,  3  Jones,  488. 

10.  The  acts  of  assembly  relating  to  the  sales,  &g.,  of  the 
Cherokee  lands,  prior  to  the  act  of  18'52,  confer  special  authority 
md  jurisdiction  on  the  commissioners;  and  to  give  effect  to  a 
.  ;-rant  issued  by  virtue  of  these  acts,  the  cases  to  which  they  are 

.  '.':»tricted  must  be  shown.     Harshuio  v.  Taylor,  3  Jones,  513. 

11.  Where  a  general  authority  and  jurisdiction  is  conferred  i^n 
■  ribunal,  the  action  of  such  tribunal  is  presumed  to  be  right 

until  the  contrary  is  shown;  but  where  such  authority  is  special, 
it  must  be  shown  by  the  party  asserting  the  validity  of  its  action, 
that  the  prescribed  state  of  iacts  existed,  which  called  for  such 
action.     Ibid. 

12.  The  title  to  the  unsold  Cherokee  lands  in  the  county  of 
■  laywood  was,  by  the  act  of  1805,  vested  in  the  justices  of  that 
;;ounty,  and  where  their  commissioner,  whose  powers  and  duties 
vere  limited,  by  the  order  of  the  court  appointing  him,  to  three 
nontlis,  executed  a  deed  for  a  portion  of  said  lands  at  the  end  of 
'tiree  years,  it  was  held  to  be  inoperative  and  void.  Cooper  v. 
(ri6so7z,'6  Jones,  512. 

13.  Where  a  Cherokee  Indian  took  a  reservation  of  a  certain 
n-act  of  land  for  himself  for  life,  with  a  remainder  in   fee  to  hie 

■hildren,  which  he  was  authorized  to  do  under  the  treaties  of 
817  and  1819,  but  which  he  was  to  forfeit  should  he  voluntari- 
,y  abandon  it,  i^  luas  held  t\\?it  his  selling  the  land  to  a  Avliite 
;  aan,  and  leaving  it,  was  a  voluntary  removal  therefrom,  and  w<^s 
,  forfeiture  of  the  whole  estate,  so  that  his  children  lost  all  right 
io  it  after  his  death.  Welch  v.  Trotter,  8  Jones,  197. 
See  (Landlord  and  Tenant,  32.) 


L\DianiEXT.— I. 


■ii 


INDICTMENT. 

I.  In  what  cases  an  indictment  will  lie.         \l.  Plea   of  former  acquittal   or  con- 


11.  Form  and  matters  relating  thereto. 

III.  Of  the  trial,  verdict  and  judgment. 

IV.  How  a  presentment  is  to  be  made,  or 

a  bill  found. 
V.  Effect  of  a  nolle  prosequi. 


viction. 
Viy.  Of  quashing 'udictments. 
Yin.  Variance  betvreen  the  allegations 
and  proofs. 
IX.  Limitation  of  time  within  which  an 
indictment  will  lie. 


I.       IX  WHAT  CASES  AN  INDICTMENT  WILL  LIE. 

1.  Where  a  merchant's  clerk  liad  sent  goods  from  the  store  to 
a  person  at  a  distance,  with  directions  to  sell  them,  and  he  had 
not  communicated  this  transaction  to  his  principal,  or  any  of  his 
other  clerks,  nor  made  any  entry  of  it  in  the  books,  on  an  in- 
dictment under  the  stat.  21  Hen.  8,  ch.  7,  (Rev.  €ode,  cli.  34 
sec.  18,)  the  judges  difiered  on  the  question  whether  he  could  be 
convicted  under  the  statute,  but  agreed  that  he  might  be  con- 
victed of  larceny  at  the  common  law.     State  v.  Hiygins,  Alar., 

'>2,  (59.)  ,  " 

2.  A  person  may  be  indicted  for  perjury  on  an  affidavit  not 
signed  by  him.     State  v.  Ransome,  1  Hay.,  1. 

?>.  An  indictment  for  a  forcible  trespass  will  lie  against  per- 
sons for  taking  and  carrying  av/ay  slaves,  from  the  possession  of 
him  M-ho  has  it.  though  done  by  the  command  of  the  real  owner. 
State  V.  White,  1  Hay.,  13,  (18.) 

4.  If  a  horse  be  stolen  in  one  state  or  territory  and  be  carried 
into  another,  an  indictment  for  larceny  in  the  latter  cannot  be 
supported;  and  upon  a  special  verdict  stating  these  facts,  judg- 
meiit  must  l)e  rendered  for  th&  defendant.  State  v.  Brown,  1 
Hay.,  100,  (110.) 

;1  If  an  outhouse  be  so  near  a  dwelling  house,  that  it  is  used 
therewith  as  appurtenant  to  it;  as  if  it  be  within  seventeen  and 
a  half  feet  of  it,  burglary  mav  be  committed  in  it.  State  v. 
Twitty,  1  Hay.,  102,  (118.") 

G.  The  State  cannot  divide  an  oftence.  consisting  of  several 
trespasses,  into  as  many  indictments  as  tht.re  are  acts  of  trespass, 
that  would  separately  support  an  indictment,  and  afterwards  in- 
dict for  an  oft'ence  compounded  of  them  all.  State  y,  L/ylcs,  2 
Hay.,  4,  (148.) 

f.  If  a  public  officer,  entrusted  with  definite  powers  to  be  ex- 
ercised for  the  benefit  of  the  community,  wickedly  abuse,  or 
fraudulently  exceed  them,  he  is  pmiishable  by  indictment,  though 
no  injurious  effects  result  to  any  individual  from  his-  miscon- 
duct.    State  \.  6-7«.SY/o?r.  Conf  Kep.,  38,  (17G.) 

8.  The  secretary  of  state,  whose  duty  it_wa8,  under.au  act  of 


nS  INDICTMENT.-^I. 

the  legislatiu-o,  to  issue  land  warrants  under  certain  circunistaii- 
C'Cfc!,  was  held  liable  to  be  indicted  in  this  state  for  fraudulently 
issidng-  such  warrants,  though  the  title  tc  the  land,  for  which  the 
warrants  were  issued,  was  in  the  United  States,  and  not  in  this 
si.ate.     Ibid 

i>.  An  indictment  will  not  lie  for  a  mere  intention  to  pass  coun- 
terfeit bank  notes,  knowing  tliem  to  be  counterfeit,  if  no  cul[)a- 
ble  ad  be  charged.     State  v.  Fenny,  1  Car.  L.  li,  517,  (130.) 

10.  Profane  swearing,  independent  of  the  disturbance  and  in- 
jury it  may  produce  to  those  who  hear  it,  is  not  indictable;  but 
when  the  facts  will  support  a  charge  of  it  as  a  nuisance,  it  is  in- 
dictable. State  V.  Kirhy,  1  ]\Iurph.,  25-1.  S.  P.,  State  y.  Filar, 
1  Dev.,  2G7. 

1 1.  An  indictment  for  trespass  in  taking  personal  property  can 
onlv  be  supported  when  the  taJiing  is  by  force,  or  'ji/an/j  forti. 
Slide  V.  Flowers,  2  Murph.,  '22b,  S.  C.  1  Car.  L.  \\.  97,  (13.)' 

12.  If  one  gain. possession  of  a  slave  who  has  come  upon  his 
land,  he  may  protect  himself  and  the  slave  from  an  attempt  to 
■j-etake  the  latter,  made  by  one  claiming  pro])erty;  and  may  use 
Ihe  Jiecessary  force  to  retain  possession  of  him.     Il)id. 

13.  Where  there  is  one  continuing  transaction,  though  there 
r:i:iy  be  several  distinct  asportations  in  laAv,  yet  the  party  may 
bvj  indicted  for  the  final  carrying  away,  and  all  who  concur  are 
■guiitv,  though  they  were  not  privy  to  the  first  or  the  interme- 
diate acts.    ''State  V.  Trexler,  2  Car.  L.  E.  90,  (188.) 

14.  An  indictment  will  lie  against  the  commissioners  of  a  town 
ibr  culpable  omission  and  negligeni'e  in  keeping  the  streets  in 
repair;  because  they  are  invested  witli  power  to  levy  taxes,  one 
•object  of  which  is  to  keep  the  sti-eets  in  good  ordei'.  Slate  v. 
Commissioners  of  FayetteviUe.  2  Car.  L.  li.  617,  (419.) 

1").  A  person,  who  contracts  with  the  county  to  keep  a  bridge 
ill  repair,  mav  be  indicted  for  a  neglect  to  do  so.  Si'ite  v. 
CroiceU;  N.  C.  Term  R,  254,  (083.) 

IG;  Where  defendants  are  bound  to  keep  the  streets  of  an  in- 
<'()rporated  town  in  order,  and  three  or  four  streets  are  presented 
on  the  same  day,  the  defendants  should  be  indicted  but  once  for 
all;  and  if  separate  bills  l)e  found,  a  conviction  of  one  may  be 
pleaded  in  bar  of  the  others.  Stale  v.  Commissioners  of  Fai/cttc- 
i-ille,  2  I\Iurph.,  371. 

17.  A  pa})er  writing  in  tliese  words:  "lleceived  of  J.  D.  his 
Look  account  in  full.  J.  L"  is  a  receipt  for  money  within  the 
Act  of  1801,  concerning  forgery;  it  being  prcn'cd  that  at  the 
day  it  bears  date  J.  D.  was  indebted  to  -1.  L.  in  a  sum  of  money, 
■upon  an  open  account — so  Avould  be  the  AV(;>rd«:  "lieceived  the 
above  in  full"  at  the  foot  of  a,n  account;  and  all  debts  are  under- 
tstood  to  be  received,  or  paid  in  money,  unless  explained  by  some 
other  circumstance.     State  v.  Dalton,  1  Hawks,  3. 

18.  To  support  an  indictment  for  taking  away  prop^n-fy,  it  must 


IXDIGTMENT.— I.  719 

1)0  a  violent  taking  from  the  actual  possession  of  the  owner  at 
the  time.     State  v.  JlrDoirell,  1  Hawks,  449. 

19.  A  challenge  to  fight  a  duel,  ovt  of  the  State,  is  indictable, 
for  its  tendency  is  to  arouse  the  passions  and  produce  an  innne- 
diatc  breach  oi"  th<?.  peace.     State  v.  Farrier,  1  Ha^yks,  4S7. 

•20.  The  selhug  of  unwholsome  provisions,  ]iot  fit  to  be  eaten 
bv  man,  is  an  oiienec  in  anv  person,  indictable  at  common  law. 
S\'ate  v.  Smith,  o  Hawks,  o7<S. 

21.  An  indictment  will  lie  against  a  person  who  was  present, 
aiding  and  abettnig  in  the  eohnneneemeiit  of  an  assault  with  in- 
tent to  rescue  a  prisoner,  although  liis  fears  prevented  his  going 
all  lengths  wdth  his  party.     Siaie  v.  Morri.%  '6  Hawks,  oii^. 

22.  Upon  the  construction  of  the  act  against  a  mother  for  con- 
cealing the  birth  of  her  bastard  child,  it  ivas  heldihixt  the  corpus 
</Liicti\\-iiB  the  concealing  the  death  of  a  being,  upon  whomthe 
crime  of  murder  could  have  been  conmnitted,  and  that,  therefore, 
if  the  child  were  born  dead,  and  so  shown  to  be  by  tlie  mother, 


ipon  W'hom  the  burthen  of  that  proof  lay,  the  concealment  Avas 
■ot  an  ofience  within  the  statute.  State  v.  Joiner,  4  Hawks,  050. 
(See  Ivev.  Code,  ch.  34,  sec.  28.) 

2:3.  A  combination  by  two  or  more  to  do  any  unlawful  act,  or 
cue  prejudicial  to  another,  or  to  the  community,  is  indictable  at 
cnmmo'n  law,  as  conspiracy;  Iivwr,  a  combination  by  tvro  to 
cheat  a  third  person,  by  making  him  drunk  and  playing  falsely 
at  cards  with  him,  is  indictable  at  common  law.  Stater.  Younger, 
1  Dev.,  o57. 

24.  If  three  persons  commit  a  trespass  upoii  property  iji  the 
presence  of  the  person  in  possession,  their  numl;)ers  make  it  in- 
dictable, though  no  actual  force  be  used.  Sta.tev.  FisJier,  1  Dev., 
r>i)4 

25.  A  fraud  perpetrated  upon  an  individual,  without  the  use 
of  false  tokens,  or  any  deceitful  practice  aftecting  the  community 
at  large,  and  without  the  aid  of  a  conspiracy,  but  by  a  false  as- 
sertion only,  is  not  indictable.     State  v.  Justice,  2  Dev.,  199. 

2().  It  is"^not  an  otfence,  either  by  common  law  or  by  statute, 
iV)r  a  white  man  to  gandtle  Avitli  a  slave.  State  v.  Feiitbcrton,  2 
Dev.,  281.     (It  is  now  indictable,  see  Kev.  Code,  ch.  34,  sec.  116.) 

27.  In  an  indictment  for  a  forcible  trespass  upon  personal 
property,  there  must  be  greater  force  tlian  is  expressed  by  the 
words  a  ef  «r»/w.  The  trespass  must  involve  a  breach  of  the 
jjcace,  or  directly  tend  to  it,  as  being  done  in  the  }»resence  of  the 
prosecutor,  to  his  toror  or  againt  his  will.  State  v,  3JiUs,  2 
Dev.,  420.  . 

2S.  In  an  hidictment  under  the  act  of  1791,  to  prevent  maim- 
ing, the  intent  to  disfigure  is  presumed  from  the  act  of  maiming, 
unless  the  contrary  appear.  And  under  the  act,  the  offence  is 
complete,  if  the  maim  be  committed  on  purpose,  and  icith  i)itenf 


720  INDICTMENT.— I. 

fo  disfigure,  though  without  malice  p'^ejxnse.     State  v.  Qraivforch 
2;Dev.,  425. 

29.  A  conspiracy  to  murder,  unaccompanied  by  an  intent  to 
r.ebel  or  make  insurrection,  is  within  the  meaning,  as  well  as 
within  the  Avords,  ofthe  act  of  1802,  passed  to  prevent  conspira- 
cies and  insurrections  among  slaves.  State  v.  Tom,  2  Dev.,  bCAl 
(See  Eev.  Code,  ch.  107,  sec.  35.)     _ 

30.  In  an  indictment  for  a. conspiracy  against  two,  under  tin ■ 
act,  the  acquittal  of  one  is  the  acquittal  of  the  other.     Ilyid. 

31.  A  retailer  of  spirituous  liquors  is  not  an  ordinary  keeper 
within  the  act  of  1801,  to  prevent  excessive  gaming,  and  is  not 
indictable  uuder  that  act  for  permitting  unlawful  games  to  bi/ 
played  in  his  house.  State  v.  Hix,  3  Dev.  116.  (He  is  now  in- 
dictable, see  Rev.  Code,  ch.  34,  sec.  76.) 

32.  •  In  the  act  of  1801,  to  prescribe  the  punishment  of  forgery, 
the  words  "shall  show  forth,  in  evidence,  any  forged  deed,"  &c., 
are  confined  to  the  exhibition  of  it  as  evidence  upon  a  judicia  I 
proceeding,  and  are  not  equivalent  to  the  words  "utter  and 
publish"  in  the  statutes  against  counterfeiting.  State  v.  Briti, 
H  Dev.,  122.     (vSee  Rev.  Code,  ck.  34,  sees.  59,  60  and  61.) 

33.  The  forging  an  order  for  the  delivery  of  goods  is  within 
the  act;  and  one  found  in  the  possession  of  a  forged  order  i^ 
presumed  either  to  have  forged  it  or  procured  it  to  be  forged, 
until  the  contrary  appears.     Ihid. 

34.  The  act  of  1794,  to  prevent  owners  of  slaves  from  hirinr; 
to  them  their  own  time,  does  not  subject  the  master  to  an  indict - 
Tiieiit;  the  remedy  being  against  the  slave  alone.  State  v.  Cler - 
on.%  3  Dev.  472.  "  (See  Rev.  Code,  ch.  107,  sec.  28  and  29.)  _ 

35.  The  disturbing  of  a  congregation  assembled  for  religious 
worship,  by  laughing  and  talking,  and  indecent  actions  and 
grimaces,  during,  the  performance  of  divine  worship,  is  a  misde- 
meanor, mid.  per  se  indictable.     State  v.  Jasper,  4  Dev.,  323. 

36.  An  indictment,  which  states  no  unlawful  purpose,  and 
sets  forth  no  act  which  the  defendants  assembled  to  commit, 
cannot  be  one  for  an  unlawful  assembly.  Nor  is  one,  which 
charges  no  act  of  Adolence,  nor  an  act  calculated  to  inspire  terror, 
nor  any  attempt  to  commit  an  act  of  violence,  which,  if  com- 
mitted, would  make  the  defendants  rioters,  an  indiotment  for  a 
riot  or  a  rout.     State  v.  Baldicin,  Dev.  and  Bat.  195. 

37..  Where  a  statute  creates-  an  offence,  and  not  only  declares 
the  specific  penalty,  but  also  the  mode  in  Vvdiich  it  shall  be 
recovered,  that  particular  method,  and  no  other,  must  be  pur- 
sued. Hence  it  is  not  an  indictable  offence  fora  justice  of  the 
peace  to  celebrate  the  rights  of  matrimony,  without  a  license 
from  the  clerk  of  the  county  court,  under  the  act  of  1778,  as 
that  act  not  only  makes  that  an. offence,  which  was  not  so  at 
common   law,  but  also  annexes  the  penalty  andl  the  mode  of 


iNDrcTJ^rE^^T.^I:  721 

recovery.  State  v.  Loftin,  2  Dev.  and  Bat.  31.  (See  Rev.  Code, 
ch.  Q^^  sec.  6.) 

38.  A  trespass  to  be  indictable  must  involve  a  breach  of  the 
peace,  or  manifestly  tend  to  it,  and  must  therefore  be  in  the 
presence  of  the  owner,  to  his  terror,  or  against  his  will.  State 
V.  Love,  2  Dev.  and  Bat.  267. 

31).  The  law  confides  to  schoolmasters  and  teachers  a  discre- 
tionary power  in  the  intlietion  of  punishment  on  their  pupils, 
and  will  not  hold  them  responsible  criminally,  unless  the  punish- 
ment be  such  as  to  cause  permanent  injury  to  the  child,  or  be 
inflicted  merely  to  gratify  their  own  evil  passions.  K:)tate  v. 
Penderr/rass,  2  Dev.  and  Bat.  3(35. 

40.  In  an  indictment  under  the  act  of  1779  for  seducing  and 
conveying  away  a  slave,  it  ivas  held  that  the  seduction  and  con- 
veying away  must  concur  to  constitute  the  offence;  and  that  one 
who  did  not  himself  seduce,  or  aid  in  seducing  the  slave,  but 
only  assisted  in  the  conveying  away,  could  not  be  convicted  as  a 
priiicipal  felon.  State  v.  Hardin,  2  Dev.  and  Bat.,  407.  (One 
who  aids  in  carrying  away  a  stolen  slave,  knowing  him  to  be 
such,  afterwards  liable  to  be  convicted  as  a  principal.  See  Rev. 
Code,  ch.  34,  sec.  10.) 

41.  The  act  of  181 G  relates  to  the  former  one  of  1809,  and  the 
scope  of  both  acts,  or  of  the  act  of  1816  construed  in  reference 
to  that  of  1809,  is  to  make  it  an  indictable  offence  to  issue,  pass 
or  receive  small  notes,  checks  or  due  bills,  as  a  substitule  for 
money.  Hence  the  intent  that  a  note  issued  should  pass  current 
as  a  substitute  for  money,  or  that  in  fact  it  was  so  issued  and 
passed,  is  an  essential  ingredient  of  the  ofrence,  and  must  be 
averred  in  the  indictment  and  proved  on  the  trial.  State  v. 
Bump  reys,  2  Dev.  and  Bat.,  boo.  (See  Rev.  Code,  ch.  3G,  sec. 
5  and  G.) 

42.  A  master  is  not  at  liberty  to  contrive  the  escape  of  his 
slave,  who  has  committed  a  felony;  but,  if  he  be  a  magistrate,  he 
should  not  act  officially  against  him,  and  is,  therefore,  not  in- 
dictable for  declining  to  do  so.  State  v.  LeiqiL  3  Dev.  and 
Bat,  127. 

43.  An  indictment  will  lie  for  disturbing  a  congregation  of 
})eople  assembled  for  the  purpose  of  divine  service,  and  engaged 
in  the  worship  of  Gcd,  although  it  be  nc^t  in  a  church,  chapel  or 
meeting  house,  permanently  set  apart  by  a  religious  .society  for 
divine  worship.     State  v.  Stcird',  4  Dev."  and  Bat.,  358. 

44.  An  indictment  will  lie  for  selling  unwholesome  provis- 
ions, but  they  must  be  in  such  state  as  that,  if  eaten,  they  would 
})y  their  noxious,  unwholesome  and  deleterious  qualities  have 
affected  tiie  health  of  those  who  were  to  consume  them.  State 
V.  Kortan,  2  Ired.,  4(). 

45.  On  an  indictment  under  the  act  in  relation  to  the  altering* 
or  defacing  the  marks  o    cattle,  &c.,  if  the  act  of  altering;-  or 

4*  ° 


722  INDICTxMEXT.— T. 

defacing,  See,  be  proved  to  have  been  ^vilfnlly  done,  it  iiecessarilj' 
follows  that  the  intent  was  to  defraud  or  injure  tlie  owner,  un- 
less there  be  proof  to  the  contrar}^     Stale  v.  Bavi-e,  2  Ired.,  153. 

4G.  It  is  no  objeetion  to  a  cojivietion  on  an  indictment  for 
this  offence,  that  the  'cattk,  beast,  &c.,  had,  at  the  time  the  act 
was  done,  sti-ayed  from  its  owner.     Ibid.. 

47.  An  indictment  for  a  conspiracy,  charging;  the  object  of 
the  conspiracy  to  be  to  cheat  and  defraud  the  citizens  at  large, 
or  particular  individuals,  out  of  tlieir  land  entries,  is  not  sup- 
ported by  evidence  that  the  defendants  conspired  "to  make  en- 
tries in  the  land  office  before  it  was  opened,  or  before  it  was  de- 
clared to  be  opened,  or  after  it  was  opened,  for  the  puqjose  of 
appropriating  the  lands  to  their  own  use  and  excluding  others. 
State  V.  Tvammell  2  Ired.,  379. 

48..  An  indictment,  charging  a  person  with  disturbing  "  a  re- 
ligious assembly,  connnonly  called  a  quarterly  meeting  confer- 
ence,"  cannot  be  supported.  A  meeting,  the  disturbance  of 
■which  is  an  indictable  offence,  must  be  "  for  divine  worship, " 
•' divine  service,  "  "religious  worship  or  service,"  or  something 
of  the  same  import.     State  r.'  Fisher,  3  Ired.,  111. 

4i).  The  offence  of  riding  or  going  armed  with  unusual  and 
dangerous  Aveapons,  to  the  terror  of  the  people,  is  an  offence  at 
common  law,  and  is  indictable  in  this  state.  State  v.  J-Iioitli/.  3 
Ired.,  418. 

aQi  A  man  may  carry  a  gun  for  any  lawful  purpose  ol  busi- 
ness or  amusement;  but  he  cannot  go  about  with  that  or  any 
other  dangerous  weapon,  to  terrify  and  alai-m,  and  in  such  a 
nujiner  as  naturallv  will  terrifv  and  alarm,  a  peaceable  people. 
Jlirt. 

51.  All  persons,  and  not  planters  oidy,  are  subject  to  indict- 
ment for  not  keeping  up  good  fences,  as  required  by  the  34th 
and  48th  chapters  of  the  Revised  Statutes.  State  v.  JBell,  3  Ired., 
")0(5.     (See  llev.  Code,  ch.  34,  sec.  41,  and  ch.  48,  sec.  1.) 

ir2.  In  an  isidictment  for  arson,  a  building,  in  which  goods  are 
kept  ibr  sale  by  a  retail  merchant,  is  a  store  house  within  the 
meaning  (  f  the  act,  Eev.  Stat.,  ch.  34,  sec.  1.  State  v.  Sandy,  3 
Ired.,  570.     (See  Eev.  Code,  ch.  34,  sec.  2.) 

53.  To  constitute  arson,  the  least  burning  of  the  house  is  suf- 
ficient; and  the  charring  of  the  floor  to  the  depth  of  half  an 
inch  is  certainly  sufficient.     Ibid. 

54.  The  Buncombe  Turnpike  Company  are  bound  by  their 
charter  to  keep  the  road  in  good  repair,  and  are  indictable  if 
they  suffer  it  to  become  ruinous.  The  president  and  directors 
of  the  company  are  bound  to  exert  all  their  powers,  and  apply 
all  their  official  means,  to  the  keeping  of  the  road  in  good  order; 
and  for  a  default  in  the  perlbrmance  of  this  public  duty,  they 
are  indictable.     St^fey.  Fattoiu  4  Ired.,  IG. 

55.  A  person  is  indictable  for  buying  from,   or  selling  to  a 


^lave-,  oil  liis  own  accourft,  eveiti  if  the  owuer  of  the  slave  have 
.given  ]iis  permission  fof-  diat  purpose,  unless  that  permission  be 
in  vriting.     State  v.  Hart.  4  Ired  256. 

5G.  An  authority  cawnot  be  given  by  any  person  to  the  slav^e 
of  another,  to  sell  an  article,  though  that  article  be  the  property 
-of  the  person  giving  the  permission.     IJnd, 

57.  Where  a  gate  has  been  unlawfully  erected  across  a  public 
•road,  and  the  proprietor  of  the  land,  through  which  the  road 
passes,  and  on  whicli  the  gate  has  been  placed,  afterwards  sells 
the  land  to  A,  who  uevcr  actwilly  entered  into  the  land  but 
leased  it  to  others,  who  kept  up  the  gate,  A  is  not  indictable  for 
the  continuance  of  the  nuisanoo.     State  v.   Pollolc,  4  Ired.,  o03. 

58.  The  })rofanation  of  SundaX''-,  by  performing  labor  on  that 
-lav,  is  not  an  indictable  offence  in  this  state.  State  v.  WilllaiiiS, 
4  ired.,  400. 

50.  A  marriage  between  a  ^  hite  and  colored  person,  contrac- 
ted in  1842,  was  void  undent  the  act  of  1830,  and  although  this 
^ict  was  repealed  in  "the  i-ievised  Statutes  of  183G,  yet  it  was 
therein  expressly  pr^oViided  that  the  repeal  should  not  affect 
right  or  actions,  ciimes  or  prosecutions,  arising  befoi-e  the  re- 
peal. State  V.  Ihoper,  5  ired.,  201.  (Such  marriages  are  again 
prohibited  and  declared  void,  see  Kev.  Code,  ch.  68,  sec.  7.) 

60.  Under  the  first  clause  of  the  31st  section  of  the  111th 
chapter  of  th<e  Revised  Statutes,  prohibiting  masters  from  hiring 
to  slaves  their  own  time,  the  master  is  not  indictable,  being  only 
subject  to  a  penalty  of  forty  dollars;  nor  is  he  indictable  under 
the  second  clause  of  that  section,  the  process  being  ag.dnst  the 
slave  and  not  against  the  master.  State  v.  Clarissa,  5  ired.,  221. 
(.Sfc  Rev.  Code,  ch.  107,  sec.  28.) 

<)1,  The  act  of  1794  was  not  repealed  by  that  of  1831,  on  the 
■-subject  of  slaves  going  at  large.  They  were  intended  to  punish 
<lilferent  offences,  and  they  are  both  now  retained  in  the  Rev. 
•Suit.,  ch.  Ill,  sees.  31  and  32.  Ibid.  (See  also  Rev.  Code,  ch. 
107,  sees.  28  and  29.) 

()2.  To  constitute  the  offence  under  the  latter  section,  it  is  not 
necessary  that  the  slave  should  have  hired  his  time.  It  is  sufii- 
<-ient  if  the  master  })ermit  him  to  go  at  large  as  a  freeman.  Ibid. 

63.  Knowingly  to  pass  a  counterfeit  bank  note,  for  the  sake  of 
gain,  to  any  person,  whether  he  know  it  to  be  forged  or  not, 
i<  a  crime  under  the  act  of  1819.  State  v.  Harris,  5  Ired.,' 
287.     (See  Rev.  Code,  ch.  34,  sec.  61.) 

64.  In  the  act  to  punish  the  burning  (jf  jails,  c^c,  the  word 
"or,"  before  "malicior.sly,"  should  be  construed  "and,"  so  that 
the  burning  must  be  both  willful  and  malicious,  to  constitute  the 
offence  provided  against.  State  v.  MitchvV,  5  Ired.,  350.  (See 
Rev.  Code,  ch.  34,  sec.  7.) 

65.  If  a  prisoner  burn  part  of  a  jail,  merely  for  the  purpose  of 
ecting  his  escape,  and  not  with  the  intent  to  destroy  the  build- 


724  IOT)ICTMENT.— I. 

ing,  he  is  not  guilty  under  tl-ie  act.  But  althougli  his  main 
intent  may  be  to  escape,  yet  if  he  intends-  to  burn  down  the 
building,  in  order  to  effect  his  main   design,,  he  is  guilty.     Ihid. 

6G.  If  an  intent  tO'  burn  the  building  exist,  the  oiience  is  com- 
plete, as  in  arson  at  con:fcmon  law,  however  small  a  part  may  be- 
consumed.     Ihid. 

67.  When  a  person,  who  occupies  a  tract  of  land  over  which  a 
public  road  runs',  keeps  up  a  fence  across  the  road,  though  he 
did  not  originally  erect  it,  he  is  liable  to  an  indictment  tor  a 
nuisance.     State  v.  Hunter,  5  Ired.,  oGl). 

(vS.  It  is  only  when  the  act  or  acts  done  by  a  person,  or  the 
omission  to  act  by  one  who  ought  to  act,  operate  to  the  annoy- 
ance, detriment  o-r  disturbance  of  the  public  at  large,  that  the 
offender  is  liable  to  indictment  at  common  law.  Hence,  a  sin- 
gle act  drunkenness,  though  it  be  in  the  presence  of  a  crowd,  is 
not  indictable,  if  the  persons  assembled  were  not  thereby  an- 
noyed or  disturbed.     State  v.  Deberry,  5  Ired.,  371. 

1)9.  A  woman  cannot  be  indicted  for  keeping  a  bawdy  house, 
merely  because  she  is  unchaste,  lives  by  herself,  and  habitually 
admits  one  or  many  persons  to  an  illicit  intercourse  with  her. 
State  v.  Evans,  5  Ired  ,  603. 

70.  The  offence  of  keeping  a  bawdy  house  consists  in  keeping 
a  house  or  room,  and  therein  accommodating  and  entertaining 
lewd  people  in  the  perpetration  of  acts  of  unchastity,  meaning 
acts  between  persons  thus  entertained.     Ihid. 

71.  Keeping  an  open  shop,  and  selling'  goods,  on  Sunday,  is  not 
an  indictable  offence  in  this  state;  profanation  of  Sunday  being 
pnnishable  here  only  by  certain  pecuniary  penalties,  imposed  by 
the  Legislature,  and  to  be  recovered  before  a  justice  of  tlie 
peace.  "  State  v.  Brooksbanl%  6  Ired.,  73.  (See  Kev.  Code,  ch. 
115,  sec.  1.) 

72.  Falsely,  wittingly  and  corruptly  rubbing  out,  erasing  or 
obliterating  a  release  or  acquittance  on  the  back  of  a  note  or 
bond,  or  elsewhere,  does  not,  according  to  the  law  of  tliis  state, 
amount  to  tlie  crime  of  forgery.     State  v.  Tltornhurg,  ()  Ired..  7S. 

73.  An  indictment  will  lie  against  any  person  who  erects  a. 
fence  across  a  pul)lic  road  which  has  not  been  discontinued  in 
the  manner  directed  by  tlie  act.  State  v.  Shvford,  6  Ired.,  162. 
(See  Rev.  Code,  ch.  10 i,  sec.  2.) 

74.  Falsely  putting  a  witness's  name  to  a  bond,  which  is  not 
required  by  law  to  have  a  subscribing  witness,  docs  not  vitiate 
the  lx)nd,  and  is  not  a  forgery.     State  v.  GJierldn,  7  Ired.,  20_(i. 

75.  A  free  person  of  color,  who  is  employed  to  carry  a  pistol 
from  one  place  to  aiiother,  and  who  claims  no  right  to  use  the 
instrument,  and  has  no  intention  of  doing  so,  is  not  indictable 
under  the  act  of  1<S40,  which  prohibits  free  persons  of  color  from 
having  arms  in  their  possession  without  a  license  from  the  conn- 


INDICTMENT.— I.  725 

ty  court.     State  v.  Lane,  8  Ired.,  256.     (See  Rev.  Code,  cli.  107, 

sec.  66.)  ^  .     ,,     -n       ox  i.     1 

76.  The  act  of  1846,  cli.  70,  alters  the  act  m  the  liev.  btat.,  ch. 
34,  sec.  7,  so  as  to  reduce  the  offence  of  burning  a  millhouse,  &c., 
from  a  felony  to  a  misdemeanor,  and  substitutes  the  punishment 
of  fine  and  imprisonment  for  that  of  death.     State  v.  Upchurch, 

9  Ired.,  454.     (See  Kev.  Code,  ch.  34,  sec.  103.) 

77.  Where  a  man  is  indicted  under  the  statute  for  "knownig- 
ly  and  fraudulently  voting  at  an  election,"  when  he  is  not  quali- 
fied to  vote,  he  cannot  justify  himself  by  showing,  that  lie  was 
advised  by  a  very  respectable  gentleman  that  he  had  a  right  to 
vote ;  for  the  maxim,  that  "  ignorance  of  the  law  excuses  no  man,' 
.applies  as  strongly  to  this  case  as  to  any  other.     State  v.  Bvyett, 

10  Ired.,  336. 

78.  Permitting  a  man's  slaves  to  meet  and  dance  on  his  own 
premises  on  Christmas  eve,  or  other  holidays,  even  thougli  other 
■slaves,  with  the  permission  of  their  owners,  participate  m  the 
enjoyment,  and  though  some  of  the  younger  members  of  the  fam- 
ily occasionally  join  in  the  dance,  does  not  constitute  the  offence 
of  keeping  a  disorderly  house,  nor  any  other  indictable  offence. 
State  V.  Boyce,  10  Ired.,  536. 

70.  The  provisions  of  the  act  of  1811,  Rev.  Stat,  en.  34,  sec. 
61,  punishing  the  cheating  by  false  tokens,  &c.,  do  not  apply  to 
the  case  of  conveyances  o"f  lands.  State  v.  Burrows,  11  Ired., 
477.     (See  Rev.  Code,  ch.  34,  sec.  67.) 

80.  Where  the  true  ground  of  complaint  was  that  the  defend- 
ant, by  means  of  a  forged  paper,  induced  the  prosecutor  to  execute 
a  deed  calling  for  35^  acres  of  land  instead  of  55i  acres,  there- 
l)y  defrauding  the  prosecutor,  the  indictment  should  distinctly 
aver  this  fraudulent  purpose;  but  though  this  be  a  frand,  it  does 
not  come  within  the  definition  of  any  crime  or  misdemeanor, 
known  either  to  the  common  or  statute  law.     Ibid. 

81.  In  an  indictment  for  selling  spirits  to  a  slave,  it  is  no  de- 
fence to  the  defendant  to  show  that  he  did  not  believe  the  act 
to  be  unlawful.  When  an  act  is  unlawful  and  voluntary,  the  quo 
(tninio  is  inferred  necessarily  from  the  act  itself.  State  v. 
Presw^W,  12  Ired.,  103. 

82.  A  proprietor  of  a  mill,  who  cuts  a  canal  across  a  public 
road,  whereby  the  passage  along  the  highway  is  obstructed,  and 
those  who  are  in  possession  of  the  mill,  claiming  under  him  and 
using  the  canal,  are  liable  to  an  indictment  for  such  obstruction, 
the  one  for  creating,  and  the  other  for  continuing  the  nuisance. 
But  if  a  bridge-  be  erected  over  the  canal,  neither  is  indictable 
simply  for  suffering  the  bridge  to  be  out  of  repair.  State  v. 
Yarrell  12  Ired.,  130. 

83.  Where  a  law  imposes  a  public  duty,  the  omission  to  per- 
form the  duty  is  indictable;  but  if  it  is  not  an  absolute  duty,  but 
.a  conditionaf  ane,  dependent  upon  the  honeat  exercise  of  the 


72G  indictment;— I. 

judgment  of  the  person  or  pers-ons,  to  whom,  it  Is  submitted™ 
whether  it  is  to  be  performed  or  not,  the  omission  to  perform  it 
is  not,  per  se,  an  indictable  offease.  Thus,  where  an  indictment 
charged  that  the  wardens  of  the  poor  had  omitted  to  make  by- 
laws, rules  and  regulations  for  the  comfort  of  the  poor,  under  the 
act,  Rev.  Stat.,  ch.  (S9,  sec.  13,  it  ivas  field  that  the  indictment 
w^ould  not  lie,  because  the  duty  imposed  upon  the  wardens  by 
that  act  ^^'as  a  discretionary  one,  to  be  exercised  as  they  might 
deem  expedient.  SUde  v.  fVilliams,  12  Ired^  172.  (See  Rev. 
Code,  ch.  86,  sec.  10.) 

84.  One,  who  votes  illegally  at  an  election  of  a  sheriff,  cannot 
defend  himself  against  an  indictment,  upon  the  ground  that  the 
election  was  conducted  irregularly.   State  v.  C'ohoon,  12  Ired.,  178. 

85.  Under  the  Revised  Statutes,  ch.  Ill,  se^e.  31,  a  master  is 
not  indictable  for  permitting  his  slave  to  go  at  large,  hiring  his 
own  time ;  he  is  only  subject  to  the  penalty  ok  forty  dollars,  im- 
posed by  that  section  of  the  act;  but  the  owner  is  indictable 
under  the  32d  section  of  the  same  act,  for  permitting  a  slave  to 
go  at  large,  as  a  free  man,  exercising  his  own  discretion  in  the 
employment  of  his  time.  State  v.  Nat,  13  Ired.,  154.  (See  Rev. 
Code,  ch.  107,  sec.  28  and  29.) 

S'o.  In  an  indictment  under  the  act  of  I84(>,  ch.  70,  for  injury 
to  a  dwelling  house,  of  which  a  lessee,  whose  term  is  unexpired, 
has  the  actual  possession,  the  property  must  be  stated  iiii  the 
lessee.  But  the  act  does  not  embrace  the  case  of  destruction!  or 
damage  to  buildings,  &g.,  by  the  owner  himself,  and,  in  law,,  the 
lessee  is  the  owner  during  the  continuance  of  his  term.  State 
v.  3Ju.son,  13  Ired.,  341.     (See  Rev.  Code,  ch.  34,  sec.  103.) 

87.  The  12th  sction  of  tlie  34th  chapter  of  Rev.  Stat.,  in  regard 
to  the  offence  of  taking  and  conveying  a  free  negro  out  of  the 
State,  with  intent  to  sell  him  as  a  slave,  includes  only  cases  in 
Avhicli  the  taking  is  by  violence ;  and  does  not  extend  to  cases 
v\'here  the  free  negro  is  induced  to  go  by  persuasion,  seduction 
or  deception.  State  v.  Weaver,  Busb.  1).  (The  law  is  now  altered, 
so  as  U)  embrace  a  ease  like  the  present,  see  Rev.  Code,  ch.  34, 
s  c  12.) 

58.  The  keeper  of  a  shop  for  the  sale  of  spirituous  liquors, 
who  permits  the  promiscuous  assembling  about  his  shop  of  per- 
sons, who  cause  disturbance  by  loud  noises,  quarreling  and 
swearing,  such  disturbance  being  the  probable  consequenceo  f 
his  conduct,  is  indictable  for  keeping  a  disorderly  house.  State 
V.  Thornton,  Busb  252. 

89.  It  is  a  misderajcanor  in  ofhce,  for  a  justice  to  sell  or  (rans- 
fer  a  judgment  rendered  by  liimself,  or  by  any  other  justice,  if 
in  his  possession,  virtnte  ojfi'-'iir  ^^^  ^''^^'^  making  it  his  duty  to 
keep  and  preserve  such  judgments.     State  v.  Zacharyr  Busl).,  432. 

90.  An  indictment  will  lie  against  one  who  sells  spirits  to  a 
slave,  though  he  has.  a  permit  from  his  ma&ter,  which  states  that 


INDICTMENT.— I.  727 

the  defendanx  ftnght  sell  and  deliver  to  said  slave  "ardent  spir- 
its, whenever  he  shall  apply  for  the  same  during  tlie  present 
year,"  snch  permit  being  void,  as  being  in  evasion  of  the  act  of 
assembly.  State  v.  Hyinan,  1  Jones,  59.  (See-  Rev.  Code,  eh. 
34,  sec.  87.) 

91.  It  is  not  indictable  to  deliver  spirituous  liquors  to  a  slave 
at  night,  upon  the  order  of  his  overseer,  for  the  overseer's  use. 
State  V  McNah\  1  Jones,  180. 

92.  Where,  by  a  private  act  of  assembl}^  a  county  court  was 
forbidden  to  grant  a  license  to  retail  spirituous  liquors  by  the 
small  measure,  witliin  the  limits  of  an  incorporated  town,  with- 
out a  Avritten  recommendation  from  tlie  commissioners  of  such 
toW]i,  and  it  appeared  from  the  records  of  the  county  court  tliat 
they  granted  a  license  to  retail  in  such  town,  withcmt  such  writ- 
ten recommendation,  the  person  obtaining  such  license  is  not 
thereby  protected  from  an  indictment.  State  v.  Moore,  1  Jones, 
27(). 

98,  Where  the  defendant  sold  a  quart  of  spirituous  liquor,  un- 
der an  agreement  that  the  seller  was  to  retain  it  in  a  separate 
vessel,  and  the  buyer  was  to  have  access  to  it  Avhen  he  pleased, 
and,  under  this  agreement,  he  drank  the  whole  at  various  times, 
it  was  held  that^  in  the  absence  of  proof  that  the  parties  intended 
the  trade  as  an  artifice  to  evade  the  statute,  the  transaction  was 
not  an  indictable  offence.     State  v.  Bell,  2  Jones,  337. 

94-.  Whenever  a  duty  is  imposed  upon  certain  persons  by  law, 
the  performance  of  which  duty  concerns  the  public,  the  omission 
to  perform  it  is  an  indictable  offence.  State  v.  Cormnission- 
ers  of  Baltujh,  3  Jones,  399. 

95.  A\^here  the  commissioners  of  a  town  are  empowered  and 
nquirecl,  to  use  certain  means  for  having  the  streets  of  the  town 
kept  in  repair,  and  the  inhabitants  of  the  town  are  by  the  same 
act  exenq^t  from  working  on  the  streets,  the  commissioners  are 
indictable  if  they  neglect  to  perform  the  duties  required  of  thera. 
Ibid. 

9().  WherCf  on  the  trial  of  an  indictmeiit  for  trading  Avith 
slaves,  the  agent  of  the  defendant  testified  that  he  had  general 
instructions  from  his  principal,  not  to  traffic  with  slaves  witliout 
a  written  permit;  it  was  held  that  although  this,  if  true,  tlirew 
the  onus  upon  the  State  of  further  proof  of  the  defendant's  guilt, 
yet  the  judge  might  leave  the  enquiries  to  the  jury,  whether 
tliese  instructions  had  been  abrogated,  and  whether  the  defend- 
ant had  s}>eeially  approved  of  tlie  act.     State  v.  Privetf,  4  Jones, 

loa 

97.  AVhere  a  slave  handed  to  a  free  negro,  in  the  shop  of  a 
retailer  of  spirits,  money  which  he  immediately  handed  to  the 
retailer,  who  in  return  delivered  him  a  quantity  of  spirits  which 
he  immediately  handed  to  the  slave,  it  ivas  hetd  that  the  free 
negro  was  not  guilty,  under  either  of  the  acts,  Rev.  Code,  ch. 


728  INDICTMENT.— I. 

34,  sec.  87,  or  ch.  107,  sec.  67,  of  selling  or  giving  spirits  to  the 
slave.  State  v.  Hopkins,  4  Jones,  305.  S.  P.,  State  v.  Wright, 
4  Jones,  308. 

98;  If  a  statute,  npon  which  a  bill  of  indictment  has  been 
found,  be  repealed,  the  indictment  can  no  longer  be  sustained. 
State  V.  Cress,  4  Jones,  421. 

99.  If  one  person,  by  such  abusive  language  towards  another 
as  is  calculated  and  intended  to  bring  on  a  fight,  induces  the 
other  to  strike  him,  he  is  guilty  of  an  afiray,  though  he  may  be 
unable  to  return  the  blow.     State  v.  Perry,  5  Jones,  9. 

100.  An  indictment  will  lie  against  one  who  gives  an  unlaw- 
ful vote,  though  he  and  others  may  have  thought  it  to  be  hiMd'ul, 
and  even  the  fact  that  the  inspectors  of  the  election  thought  it 
was  lawful  for  him  to  vote  will  be  no  defence,  if  they  did  not 
decide  so  upon  a  full  statement  of  the  facts  made  to  them.  State 
V.  Hart,  G  Jones,  389. 

101.  An  indictment  for  arson  for  burning  a  house,  built  for  a 
dwelling  house,  but  uninhabited  at  the  time,  cannot  be  sustain- 
ed for  the  felony  mentioned  in  the  2d  section  of  the  34th  chap- 
ter of  the  Rev.  Code,  but  may  be  for  the  misdemeanor  mention- 
ed in  the  l03d  section  of  the  same  act;  and  upon  a  verdict  of 
guilty,  judgment  may  be  pronounced  upon  the  prisoner  for  the 
misdemeanor.     State  v.  Clarl\  7  Jones,  167. 

102.  A  person  to  whom  a  free  negro  is  hired  by  the  court,  for 
the  payment  of  a  line  under  the  act,  Eev.  Code,  ch.  107,  sec.  75, 
is  indictable  for  beating  him  for  an  unla^vlul  purpose,  or  for  mal- 
ice.    State  V.  Norman,  8  Jones,  220. 

103.  The  willful  and  malicious  setting  fire  to  the  house  of  an- 
other, the  burning  of  which  is  only  a  misdemeanor,  will  become 
a  capital  felony,  if  a  dwelling  house,  or  barn  with  gTain  in  it, 
be  thereby  burnt,  where  such  l)m-ning  is  the  probable  conse- 
quence of  the  first  illegal  act.     State  v.  Laughlin,  8  Jones,  354. 

104.  The  burning  of  a  crib,  with  grain  in  it,  is  not  within  the 
meaning  of  the  Eev.  Code,  ch.  34,  sec.  2,  Avhich  makes  it  a  capi- 
tal felony  to  burn  a  barn  with  grain  in  it,  the  buildings  not  be- 
ing the  same,  either  in  law  or  in  fact.     Ibid. 

105.  A  house  seventeen  feet  long  and  twelve  feet  wide,  setting 
on  blocks  in  a  stable  yard,  having  two  rooms  in  it,  one  quite 
small  used  for  storing  refuse  corn,  and  the  other  used  for  storing 
peas,  oats,  and  other  products  of  the  farm,  is  not  a  barn  within 
the  meaning  of  the  statute.  Rev.  Code,  ch.  34,  sec.  2,  the  burning 
of  which  is  made  a  capital  felony.  State  v.  Laughlin,  8  Jones, 
455. 

106.  A  house  eighteen  feet  long  and  fifteen  feet  wide,  built  of 
logs  notched  up,  the  cracks  inside  covered  with  rough  boards, 
having  a  good  plank  fioor  and  a  door  about  fom-  feet  high,  and 
containing,  at  the  time  of  the  burning,  a  Cjuantity  o-f  corny  peas 
and  oats,  is  not  a  barn  within  the  meaning  of  the  statute.  Rev, 


INDICTMENT.— T.-IL  729 

Code,  cli.  34,  sec.  2,  though  it  was  the  only  building-  on  the  farm 
"used  for  storing  the  crop.     State  v.  Jim,  8  Jones,  459. 

107.  Buying  of,  and  receiving  from,  a  slave,  corn,  or  other  for- 
bidden articles,  on  the  slave's  own  account,  is  indictable  under 
the  Rev.  Code,  ch.  34,  sec.  85,  though  the  owner,  without  the 
knowledge  cif  the  trade,  is  present,  and  knows  what  is  going  on, 
but  has  given  no  written  permission  for  the  trading.  State  v. 
Honeycut,  2  Winst,  51. 

108.  If  a  slave,  livingin  a  house  to  himself,  keeps  a  boarding 
house  for  his  own  livelihood,  and  the  master,  knowing  it,  exer- 
cises no  control  over  him  or  his  business,  it  is  an  indictable  of- 
fence within  the  Eev.  Code,  ch.  107,  sec.  29.  State  v.  Brown,  2 
Winst.,  54. 

See  (Arrest,  4-5.)  (Cattle  and  other  live  stock,  6.)  (Con- 
tempt, 7.)  (Felony.)  (Justices  of  the  peace — Of  the  responsi- 
bility of  Justices,  2.)  (Highway,  3-4-5-7-13-33-43.)  (Gaming 
— What  gaming  is  made  indictable.) 

n.       FORM    AXD    MATTERS    RELATING  THERETO. 

1.  In  an  indictment  tor  murder,  the  offence  must  be  charged 
in  the  body  of  the  bill,  to  have  been  committed  within  the  dis- 
tiict,  over  which  the  court  has  jurisdiction ;  it  is  not  sufficient 
trhat  the  caption  names  the  district.  Thus,  when  the  State  was 
divided  into  districts,  an  indictment,  charging  the  offence  to 
have  been  committed  in  Beaufort  county,  without  adding  "  in 
the  district  of  Newbern,"  was  arrested.  State  v.  Adams,  Mar., 
30.  (21.) 

2.  The  length  and  depth  of  a  wound  need  not  be  stated  in  an 
indictment  for  murder.  United  States  v.  Uanw'er,  2  Mar.,  79, 
(134.)  {State  v.  Owen,  1  Murph.,  452,  is,  contra,  but  such  descrip- 
tion is  rendered  unnecessary  by  statute.  Rev.  Code,  ch.  35,  sec. 
14.     State  V.  3Ioses,  2  Dev.,  452.) 

3.  Things  written  may  be  described  in  an  indictment,  eilher 
by  the  tenor,  or  according  to  the  substance.  If  by  the  tenor, 
the  V'Cry  words  must  be  lollowed,  though  the  omission  of  a  letter, 
not  altering  the  word,  is  not  fatal:  if  by  the  substance,  you  need 
not  use  the  very  words,  but  if  you  describe  the  same  sense  and 
meaning  it  will  do.  As  to  words  spoken,  there  can  be  no  tenor 
of  them ;  and  therefore,  wliere  the  sense  and  meaning  of  the 
words  set  down  in  the  indictment  are  precisely  the  same  with 
those  proved  in  evidence,  though  not  the  very  same  words,  the 
evidence  will  support  the  indictment;  but  then  the  meaning 
must  be  evidently  the  same,  without  the  help  of  any  implica- 
tion or  anv  thing  extrinsic.  State  v.  Bradley,  1  Hay.,  403,  (404) 
and  463.  (533.)  S.  P.,  State  v.  Caffeij,  N.  C.  Term,  Rep.  272,  (694.) 
S.  C,  2  Murph.,  320. 

4.  An  indictment  in  the  county  court  for  extortion,  stating 


730  INDTCT]\rENT.— IL 

tlie_  day  on  wMcli  tlie  offence  was-  committed  in  figures,  and  also 
omiting  the  woi-d  extorsively  in  clim-ging  the  taking  tlie  unlaw- 
ful fee,  may  be  supported  under-  tiie  act  of  1784.  (See  Rev. 
Code,  cb._35,  sec.  14.)     Stcde  v.  Dickens,  1  Hay.,  40(5,  (468.) 

5.  An  indictraent  for  larceny  should  state  in  whom  the  pro- 
perty w^as,  or  tlmt  it  was  the  property  of  some  person  unknown, 
if  the  fact  were  so.  To  omit  this  is  a  fataf  defect.  State  v. 
Haddock  2  Hay.,  1(52,  (348.) 

().  The  omission  of  a  figure  in^  the'  description  of  an  instru- 
ment forged,  in  an  indictment  for  forgery,  is  fatal.  State  v.  Street, 
Tay.,  158,  {•:)8.) 

7.  The  words  "  good  and  lawful  men,""  in  the  caption  of  an 
indictment,  inquest,  &c.,  mean  freeholders.  State  v.  Glasnow, 
Conf  Eep.  38,  (17(5.) 

8.  In  an  indictment  for  murder,  the- omission  of  the  letter  "a" 
in  the  word  "breast,"  in  the  description  of  the  place  of  the 
wound  was  held  to  be  fatal.  State  v.  Carter,  Conf  Eep.,  210, 
(317.)  S.  C,  2  Hay.,  140,  (312.)  Qlmere,  whether  it  would 
be  so  now.     See  Rev.  Code,  ch.  35,  sec  14.) 

9._  An  indictment  charging  the  offence  to  have  been  commit- 
ted in  November,  1801,  and  in  the  25th<  year  of  American  Inde- 
pendence, held  to  be  bad,  and  the  judgment  arrested,  because 
the  offence  is  chajrged  to  have  been  committed  in  two  different 
years.     State  v.  Hendrichs,  Conf  Rep.,  3(51),  (445.) 

10.  It  is  not  essential  to  the  validity  of  an  indictment  that  it 
should  be  signed  l)y  the  prosecnting  officer:  State  v.  Vincent, 
1  Car.  L.  R.,  493,  (105.) 

11.  The  caption  of  an  indictment  must  describe  the  court  be- 
fore Avhich  it  is  found,  so  that  it  may  be  seen  that  the  court  can 
exercise  jurisdiction  over  the  offence  charged.  State  v.  Sutton, 
1  Murph.,  281.  (Overruled,  see  State  v.  ^  Wasden,  N.  C.  Term 
Rep.,  163,  (596.) 

12.  The  prosecuting  officer  for  the  State  has  a  discretionary 
ix»wer  to  endorse  the  governor  as  prosecutor  on  bills  of  indict- 
m.e#t,  whenever  he  may  thiidv  the  public  interest  requires  it. 
State  V.  EagJlsh,  1  Murph.,  435. 

13.  In  an  indictment  for  murder  where  the  death  is  caused  by 
a  wound,  bruise  or  other  assault,  the  stroke  must  be  expressly 
laid.  But  an  indictment  charging  "that  A.  B.,  with  a  certain 
stick,  &.C.,  in  and  upon  the  head  and  face  of  C.  D.,  then  and 
there  did  strike  and  beat,  giving  to  the  said  C.  D.,  then  and 
there,  with  the  stick  aforesaid,  in  and  upon  the  head  and  face  of 
tlie  said  C.  D.,  several  mortal  wounds,  of  which  said  several 
mortal  wounds  tfe^e  said  C.  D.  instantly  died,"  is  good;  for  there 
is  in  the  first  clause'  a*  direct  allegation  of  a  stroke,  and  the  par- 
ticiple givinr/,  and  the  words  then  and  there,  connect  the  allega- 
tion with  the  mortal  ivounds  in  the  second  clause.  State  v. 
Owen,  1  Murph.,  452. 


INDICTMENT.— II.  731 

14.  In  an  indictment  charging  "  that  A  feloniously  and  of  bis 
malice  aforethought  assaulted  B,  and  with  a  sword,  &c.,  ihen 
and  there  struck  him,"  &c.,  the  first  allegation  of  /elonioushf  and 
of  his  mciUce  aforethought,  appli€»i  to  the  assault,  extends  also  to 
the  stroke  to  which  it  is  essential.     Ihid. 

15.  When,  in  an  indictment  for  murder,  the  death  is  charged 
to  be  caused  by  a  wound,  a  description  of  the  wound  must  be 
set  forth  in  the  indictment,  its  length,  breadth,  depth,  &c.,  Avherf' 
they  are  capable  of  description ;  and  the  omission  of  such  de- 
scription is  fatal  to  the  indictment.  But  when  the  death'  m 
caused  by  a  bruise,  a  description  of  its  dimensions,  &c.,  is  not 
necessary.  Ibid.  (See  /State  v.  Idoses,  1  Dev.,  452,  and  Rev. 
Code,  ch.  35,  sec.  14.) 

IG.  An  indictment  on  a  recent  statute  is  sufficient,  if  it  state 
a  time,  which  is  after  the  statute  Avent  into  operation,  and  aver 
tnat  the  act  Avas  done  "against  the  fonn  of  statute  in  such  case 
made  and  provided."     State  v.  Ballard,  2  JMurph.  18(5. 

17.  In  an  indictment  for  forging  a  bond,  attested  by  a  wit- 
ness, it  is  not  necessary  to  describe  it  as  being'  attested  by  the 
witness,  attestation  not  being  essential  to  the  instrument  as  a 
bfiud.     Ihid. 

18.  In  an  indictment  against  an  individual,  it  is  not  necessary 
to  describe  him  by  the  addition  of  his  occupation,  Occ.  Siate  v. 
Netvnvnis,  2  Car.  L.  R.,  74,  (171.) 

19.  An  indictment  for  stealing  a  slave  must  charge  the  pro- 
perty to  be  in  the  executor,  and  not  as  that  "of  the  deceased" 
testator.     Stale  v.  Davis,  2  Car.  L.  K,  291,  (271.) 

20.  An  indictment,  stating  that  the  defendant,  on  a  certain 
day  and  year,  with  force  and  arms,  at  and.  in  a  certain  county, 
a  male  slave,  called,  &c.,  the  property,  &c.,  of  the  said  county, 
feloniously,  &c.,  is  sufficient,  after  a  verdict,  without  the  words 
"then  and  there  being  found,"  or  Avhat  is  technically  called  the 
ad  tunc  et  ibidem.     State  v.  Sparroiu,  N.  C.  Term  E.,  93,  (530.) 

21.  A  caption  to  an  indictment  is  only  necessary  when  the 
court  sits  under  a  special  commission;  and  a  mistake  in  the  cap- 
tion will  not  hurt  an  indictment  found  in  a  court,.  Avhich  sits  by 
the  anthoritv  of  a  public  law.  State  v.  JVasden,.  N.  C.  Term  11., 
1()3,  (591),)  "^ 

22.  An  indictment  for  perjury  in  s  -earing  to  cin  affidavit  was 
"  in  substance  and  effect  following,"  &c.,  and  then  assigned  that 
defendant  swore  he  did  not  know  a  writ  was  returned  against 
hira  ill  the  above  sidt,  whereas  the  affidavit  had  the  word  case 
instead  of  suit,  held  that  the  variance  was  immaterial,  as  the  in- 
dictment did  not  profess  to  give  the  t('nn7\  State  v.  Cafey,  2 
:Murph.  320,  S.  C.     N.  C.  Term  R.,  272,  ((594.) 

23.  An  indictment,  charging  the  defendant  with  forging  a  re- 
ceipt against  a  "book  account,"  is  too  indefinite.  The  term  is 
not  known  to  the  laAv,  and,  in  common  parlance,  may  mean 


732  INDICTMENT.— n. 

money,  goods,  labor,  or  whatever  may  be  brought  into  account. 
Had  the  charge  been  forging  an  acquittance  for  goods,  the  evi- 
dence of  forging  the  paper  described  in  the  indictment  would 
have  been  proper  for  the  jury.  The  paper  described  was :  "  Sept. 
3d,  1816.  Eeceived  of  James  Dalton  his  book  account  in  full. 
John  Logan."     State  v.  Dalton,  2  ]\Iurph,  379. 

24.  At  common  law  rape  was  a  felony,  but  it  was  afterwards 
changed  to  a  misdemeanor,  before  the  stat.  of  West.  1st.  By  that 
statute  the  punishment  was  mitigated,  but  by  stat.  West"!  2nd, 
the  offence  was  again  changed  to  a  felony,  and  hence  its  present 
punishment  as  a  felony  is  by  statute,  and  consequently  an  in- 
dictment for  rape  must  conclude  against  the  form  of  the  statute. 
State  V.  Dick,  2  Murph.,  388. 

25.  An  indictment  for  breaking  a  dwelling  house  in  the  day 
time,  no  person  being  therein,  and  feloniously  taking  a  bank 
note  of  tlie  value  of  five  pounds,  ouglit  formerly  to  liave  conclu- 
ded against  the  /br;»,  of  the  statutes,  to  make  out  a  capital  felony, 
because  it  depended  for  that  purpose  on  the  two  statutes  of  1806 
and  1811.  State  v.  Jim,  3  Murph.,  3.  (The  act  of  1806  which 
formed  the  8th  section  of  the  Rev.  Statutes,  ch.  34,  was  repealed 
by  the  act  of  1844,  ch.  22,  and  of  course  is  not  contained  in  the 
Rev.  Code.) 

26.  If  a  statute  cveate  an  offence,  or  alter  au  offence  at  com- 
mon law,  as  by  turning  a  misdemeanor  into  a-  felony,  the  indict- 
ment must  conclude  against  the  form  of  the  statute;  and  if  an 
offence  be  made  so,  not  by  one  statute  only,  but  by  two  or  more 
taken  together,  the  indictment  must  conclude  against  the  form 
of  the  statutes.  Ibid.  (The  defect  of  concluding  against  the 
form  of  the  statute,  Avhen  there  are  two  statutes,  and  vice  versa,  is 
now  cured  by  Rev.  Code,  ch.  35,  sec.  20.) 

27.  An  indictment  for  murder,  which  sets  forth  the  tiiyie  and 
place  of  maliinr/  the  assault,  although  it  does  not  repeat  them  as 
to  the  mortal  Now,  may  be  sustainerl  by  virtue  of  the  act  of  1811. 
State  V.  Cherry,  3  Murph.,  7.     (See  Rev.  Code,  ch.  35,  sec.  14.) 

28.  An  indictment  under  the  act  of  1779  charged  that  A  did 
"steal,  take  and  carry  away"  a  slave,  &c.,  "  contrary  to  the  act 
of  the  general  assembly  in  such  case  made  and  provided;"  he'd 
that  the  benefit  of  clergy  was  taken  away  on  a  conviction  on  this 
indictment,  although  it  does  not  charge  that  the  stealing  was 
with  an  irdent  to  sell  or  dispose  of  to  another,  or  appropriate  to  .Ids 
men  nse.  Stcde  v.  Jernir/an,  3  Murph.,  12.  (The  act  concerning 
the  stealing,  &c.,  of  slaves  is  altered  in  several  particulars.  See 
Rev.  Code,  ch.  34,  sec.  10.) 

29.  An  indictmeiit  is  a  compound  of  lawand  fact,  and  must 
be  such  that  the  court  can  see  what  is  the  alleged  offence.  Hence 
it  is  not  sufficient  to  charge  "that  the  defendant  was  a  common 
Sabbath  breaker  andprofaner  of  the  Lord's  day,  commonly  called 
Sunday,  and,  that  he,  ou  divers  Lord's  days,  being  Sundays,  did 


INDICTMENT.— IT.  733 

keep  a  certain  open  shop,  and  then  and  tliere  sold  and  exposed 
to  sale  divers  goods,  wares  and  spirituons  liquors  to  negroes  and 
others,  to  the  great  damage  of  the  good  citizens  of  the  State/' 
&c.     Slate  V.  Broicn,  3  I\lurph.,  234. 

30.  An  indictuient,  which  charges  "  that  the  defendant  was 
a  common  gross  and  notorious  druidcard,  and  that  he,  on  divers 
days  and  times,  got  grossly  drunk,"  is  not  sufficient,  because  it 
is  not  stated  that  the  offence  was  committed  in  public,  so  as  to 
make  it  a  common  nuisance.     State  v.   Waller^  3  Murph.,  22i). 

31.  In  an  indictment  for  a  riot  in  pulling  do^Vn  a  dwelling 
house,  it  must  be  set  forth  whose  house  it  is.  If  a  person  inhab- 
it a  dwelling  house  as  the  wife,  guest,  servant,  or  part  of  the 
family  of  another,  it  is  in  law  the  occupation  of  such  other  per- 
son, and  must  be  so  laid  in  the  indictment,  and  not  as  the  occu- 
pation of  the  wife,  guest  or  servant.  State  v.  dlartiJi,  3  xMurpli.. 
533. 

32.  In  an  indictment  for  the  murder  of  a  slave,  it  need  not  be 
stated  whose  property  the  slave  is,  and  if  it  be  stated,  it  is  a 
question,  whether  it  need  be  proved  as  laid  in  the  indictment. 
State  V.  Srott,  1  Hawks,  24. 

33.  All  that  is  necessary  with  regard  to  laying;  the  time  in  an 
indictment,  is  that  the  offence  shall  appear  to  have  been  com- 
mitted before  the  finding  of  the  bill,  except  in  those  cases  where 
the  time  forms  part  of  tlie  ofience.  State  v.  Hancy,  1  Hawks. 
460.  _  '^ 

34.  In  general,  the  time  is  not  traversable,  and  if  it  be  laid 
after  a  scilicif,  and  be  rt-pngnant  to  the  time  laid  in  a  former  part 
of  the  indictment,  the  scilicit  must  be  rejected  as  surplusage. 
Ibid. 

35.  In  an  indictment  for  sending  a  challenge,  it  is  not  neces- 
sary to  set  out  a  copy  of  the  challenge;  and  if  an  attempt  be 
made  to  do  so,  and  it  varies  slightly  from  the  original,  as  by  the 
addition  or  omission  of  a  letter,  ho  way  altering  the  sense,  the 
variance  is  not  fatal,  and  is  cured  after  verdict.  State  v.  Far- 
rier, 1  Hawks,  487. 

30.  An  indictment  for  forgery  should  not  only  set  forth  the 
tenor  of  the  bill  or  note,  but  should  pvufvss  to  do  so.  State  v. 
Twiltij,  2  Hawks.  248. 

37.  In  an  indictment  under  the  act  of  1810,  to  punish  the 
making,  &c.,  of  counterfeit  bank  notes,  if  the  note,  alleged  to 
Jiave  been  passed,  be  of  a  bank  not  Avithin  the  State,  the  indict- 
ment sliould  aver  that  such  bank  exists,  by  which  the  counter- 
feit note  pur|)nrts  to  have  been  issued.     Ibid.     (See  Rev.  Code, 

.  ch.  34,  sec.  (JO.) 

38.  Where  an  indictment  is  framed  on  a  statute  of  thirty  years 
standing,  which  prohibits  an  offence  after  a  specified  time,  it  is  not 
usual  or  necessary  that  it  should  allege  expressly  that  the  offence 


731  INDICTMENT.— IJ. 

was  committed  after  the  making  of  the  statute;  otliei'wise  if  the 
statute  be  a  recent  one.     State  v.  Chandler,  2  Hawks,  439. 

39.  If  a  bill  of  indictment  be  found  tnie,  the  name  of  the 
foreman  of  the  grand  jury  subscribed  with  the  initials  F.  G.  J., 
or  without  any  addition  at  all,  is  sufficient,  if  it  appear  from  the 
records  of  the  court,  that  the  person  whose  name  is  subscribed, 
is  the  foreman  of  the  grand  jury.     Ihi<t 

40.  In  an  indictment,  the  words  "false,  forged  and  counter- 
feited promissory  note,  commonly  called  a  baidi  note,  purp  rting 
to  be  a  good  and  genuine  bank  note  of  one  hundred  dollars,  on 
the  bank  of  the  Stvite  of  South  Carolina,"  contain  a  sufficient  aver- 
ment of  the  existence  of  such  a  bank  as  the  bank  of  the  State 
of  South  Carolina.     State  v.  Ward,  2  Hawks,  443. 

41.  Where  an  indictment  charges  a  defendant  with  forging  a 
banknote  "purporting  to  have  been  issued,  &c.,  promising  to 
pay,  &c  ,"  it  must  be  understood  as  description  of  a  bill,  purport- 
ing to  promise,  as  well  as  purporting  to  have  been  issued.  State 
V.  Tu-itiy,  2  Hawks,  449. 

42.  An  indictment,  containing  in  its  caption  a  statement  of 
the  term  in  these  words,  "fall  term,  1822,"  and  in  the  body  of 
the  indictment  charging  the  time  of  the  offence  in  these  words. 
"  on  the  first  day  of  August  in  the  present  year,"  was  held  good. 
There  is  no  necessity  for  stating  any  time  in  the  caption  of  an 
indictment  found  in  the  county  or  superior  courts.  State  v. 
Haddoch  2  Hav/ks,  4(il. 

43.  An  indictment  for  murder,  which  stated  that  A.  B.,  "  late 
?)f  Bladen  county,  &c.,  with  force  and  arms,"  &c.,  was  held  to 
contain  a  sufficient  description  of  the  place  where  the  murder 
was  alleged  to  have  been  committed.  State  v.  Lonmn,  3  Hawks, 
3  75. 

44.  If  an  indictment  charge  an  offence  to  have  been  commit- 
ted on  a  day  which  is  yet  to  come,  it  is  as  defective  as  if  ]io  day 
Avere  laid.     State  v.  Sexton,  3  Hawks,  1(S4. 

45.  Indictments  are  not  within  the  statutes  of /eo/<«7,5;  being 
found  by  a  grand  jury  upon  oath,  the  court  cannot  amend  them 
withouttlie  concurrence  of  the  grand  jury  which  found  them.  Hi  \ 

4().  An  indictment  charging  defendant  with  having  in  his 
possession  "  one  pair  of  dies,  upon  which  were  made  the  likeness, 
similitude,  figure  and  resemblance  of  the  sides  of  a  lawful 
Spanishmilled  silver  dollar,  &c.,  for  the  purpose  of  making  and 
counterfeiting  money  in  the  likeness  ajid  simiHtude  of  Spanish 
milled  siver  dollars,"  was  I/eld  to  charge  with  sufficient  certainty 
the  offence  designated  in  the  act  of  1811.  Slate  v.  dhliiis,  3 
Hawks.,  191.     (See  Rev.  Code,  ch.  34.  sec.  65.) 

47.  An  indictment  charging  that  the  defendant  "with  force 
and  arms  at  the  hoiise  of  one  S.  R.,  situate,  &3.,  did  then  and 
there,  wickedly,  maliciously  and  mischievously,  and  to  the  terror 
and  dismay  of  the  said  S.  11.,  fire  several  guns,"  is  sufficient  as 


IXDICOfENT.— IL  735 

an  indictment  fen-  a  forcible   trespass,  as  distingnislied   from  a 
mere  civil  trespass.     State  v.  Langford,  3  Hawks!,  381. 

48.  It  is  improper  to  lay  an  ofiencc  to  have  been  committed 
after  the  finding  of  the  indictment;  but  if  a  day  certain  be  laid 
before,  the  other  may  be  rejected  as  surplusage.  Stale  v.  Wood- 
man, 3  Hawks.,  384. 

49.  In  an  indictment  for  stealing  a  bank  note,  a  description  of 
it  in  the  following  words  "one  twenty  dollar  bank  note  on  the 
State  Bank  of  Korth  Carolina,  of  the  value  of  twenty  dollars," 
is  good.     State  v.  Bout,  3  Hawks.,  (318. 

50.  An  indictment  under  the  act  of  1811,  concerning  the  use 
of  false  tokens,  S:c.,  should  state  that  the  cheat  was  accomplish- 
ed by  means  of  some  token  or  false  contrivance,  calculated  to 
inipuse  on  the  credulity  of  ordinary  men.  A  mere  lie  is  not 
within  the  meaning  of  the  act.  State  v.  Simpson,  3  Hawks.. 
(;20.     (See  Rev.  Code,  ch.  34,  sec.  67.) 

51.  Promissory  notes  are  not  of  themselves  public  tokens, 
vrhile  bank  notes  are;  therefore,  an  indictment  for  a  cheat  at 
common  law,  by  passing  certain  "promissory  notes"  as.  and  for 
bank  notes,  without  stating  that  they  resembled  bank  notes, 
cannot  be  sustanied.     State  v.  Patillo,'4:  Hawks.,  348. 

52.  An  indictment  charging  that  the  defendant  stole  "  a  par- 
celof  oats"  is  sufficiently  certain.      State  v.  Broicn,  1  Dev.,  137. 

53.  An  indictment  for  murder,  in  which  it  does  not  appear 
that  the  death  happened  within  a  year  and  a  day  after  the  wound 
wa_s  inflicted,_is  fatally  defective.     State  v.  Orrell,  1  Dev.,  139. 

54.  In  an  indictment  for  homicide,  it  must  appear  tliat  the 
deceased  died  in  the  county  in  which  the  bill  is  found.  1  bid. 
(Prisoner  to  be  indicted  in 'the  county  where  the  assault  was 
made  whether  the  deceased  died  in  an'other  county  of  the  Slate, 
or  out  of  the  State.     See  Ptev.  Code,  ch.  35,  sec.  27  and  28.) 

55.  In  an  indictment  for  a  rape,  or  for  an  assault  with  an  in- 
tent to  commit  a  rape  by  a  colored  person,  the  words  "  forcibly 
and  against  her  will"  are  essentially  necessarv.  State  v.  Jim,  1 
Dev.,  142.     (See  Pev.  Code,  ch.  107,  sec.  44.)"^ 

5().  In  an  iudictment,  false  spelling,  which  does  not  altojr  the 
meaning  of  the  word  misspelt,  is  no  ground  for  an  arrest  of  the 
judgment.     State  v.  3IoUer,  1  Dev.,  2(;3, 

57.  An  indictment,  under  the  act  of  1825,  for  coiicealing  a 
slave  on  board  of  a  ship  with  intent,  &c.,  which  did  not  charge 
the  prisoner  to  be  in  any  way  connected  with  the  ship,  in  which 
the  slave  was  alleged  to  have  been  concealed,  was  held  to  be  fa- 
tally defective.  State  v.  Johnson,  1  Dev.,  3()0.  (The  act  of  1825 
is  c()ml)ined  with  others,  and  modified  in  the  Rev.  Code  eh  34 
sec.  11.)  '       •       . 

_    58.  The  misspelling  a  name  in  an  indictment,  where  the  sound 
IS  not  altered,  is  unimportant.     State  v.  Upton,  1  Dev.,  513. 
59.  To  constitute  forgery  at  the  common  hnv,  the  intent  to  de- 


736  INDICTMENT.— II. 

fraud  must  either  be  apparent  from  the  false  making,  or  become- 
so  by  extrinsic  facts;  therefore  an  indictment , which  charged  the 
false  making  to  have  been  in  the  alteration  of  an  order  given  by 
the  defendant,  without  charging  that  the  alteration  was  made 
after  it  was  circulated,  and  had  been  taken  up  by  him,  w^as  held 
to  be  fatally  erroneous.     State  v.  Greenlee,  1  Dev.,  523. 

(30.  An  indictment  on  the  acts  of  assembly,  prohibiting  the 
sale  of  spirituous  liquors  by  a  measure  less  than  a  quart,  which 
charges  the  retailing  to  be  "  by  the  small  measure"  is  defective; 
the  words  "  less  than  a  quart "  should  be  added  to  the  above  de- 
,scription.     State  v.  Shaiv,  2  Dev.,  198. 

(31.  Where  one  statute  creates  an  offence,  imposes  a  penalty 
and  gives  an  action  to  recover  it,  and  another  makes  the  oifence 
indictable,  as  in  the  case  of  overseers  of  pul)lic  roads,  the  indict- 
ment should  conclude  "  against  the  form  of  the  statutes."  State 
V.  Pool.,  2  Dev.,  202.  (This  is  not  now  material.  See  Rev.  Code, 
ch.  35,  sec.  20.) 

62.  An  indictment  on  a  statute  need  not  negative  a  provnso, 
which  withdraws  a  case  from  its  operation;  but  where  the  pro- 
viso ad(is  a  qualification  to  the  enactment,  so  as  to  bring  a  case 
Avithin  it,  wliich,  but  for  the  proviso,  avouIcI  be  without  the 
statute,  the  indictment  must  show  the  case  to  be  Avithin  the  pro- 
viso; therefore  an  indictment  tinder  the  act  of  1790,  against 
bigamy,  which  avers  that  the  first  wife  Avas  living  at  the  time 
of  the  second  marriage,  is  good,  without  an  averment  that  the 
first  marriage  then  subsisted.  Stale  v.  Norman,  2  Dev.,  222. 
(See  Eev.  Code,  ch.  34,  sec.  15.) 

63.  In  an  indictment  for  forcible  trespass  ttpon  personal  prop- 
erty, actual  possession  by  the  prosecutor  must  be  averred;  but 
an  averment  of  the  legal  possession  of  the  prosecutor  and  "that 
the  defendants,  with  strong  hand,  unlawfully,  violently  and 
forcibh^  did  seize,  arrest  and  take  from  the  prosecutor,"  &c.,  Avas 
held  sufficient.     State  v.  Mills,  2  Dev.,  420. 

64.  An  indictment  for  forgery  must  contain  an  exact  copy  of 
the  forged  instrument.  And  when  a  bank  note  had  been  forged 
by  raising  its  amount,  and  the  sum  mentioned  in  its  body  had 
been  erased  and  never  filled  up  again,  it  was  held  that  it  Avas 
]jro[)er  to  set  it  out  with  a  blank.  State  v.  Dourden,  2  Dev., 
443. 

65.  As  a  bank  itote  from  its  tenor  purports  to  be  of  A^alue,  it 
is  unnecessary  to  aA^er  in  the  indictment  that  itAvas  for  a  specific 
sum.  And  an  averment  of  the  legal  A'-aliclity  of  an  instrument 
is  never  necessary  in  indictments  for  forgery,  uidess  the  instru- 
ment may,  or  may  not,  from  its  tenor,  be  of  any  A-alidity.    Ihid. 

loQ).  By  the  act  of  1(S11,  all  defects  in  indictments  are  cured, 
except  the  omission  of  an  averment  of  facts  and  circiunstances, 
which  constitute  the  crime  charged.  Notliing  need  be  stated, 
of  Avhich  proof  is  not  required  on  the  trial ;  therefore,  in  an  in- 


IXDITMEXT— II.  ni 

dictment  for  murder,  it  is  necessary  to  aver  that  a  mortal  wonnd 
was  given,  but  the  size  and  nature  of  the  Around  being  matters 
not  material  to  tlie  description  of  the  offence,  nor  a  necessary- 
part  of  the  evidence,  its  dimensions  need  not  be  stated.  State 
V.  Moses,  2  Dev.,  452. 

67.  An  indictment  concluding  "  and  the  jurors,  "  &c.,  omit- 
ting the  word  "so"  is  sufficient.     Ihid. 

6S.  An  averment  of  the  time,  when  an  offence  was  committed, 
is  unnecessary,  unless  the  time  is  a  constituent  part  of  the  offence. 
Such  an  averment  is  frequently  made,  where  oftences  after  a 
certain  specified  day  are  made  criminal,  or  wliere  the  statute  in- 
creases the  punishment;  but  if  seems  that  it  is  not  now  necessary 
in  any  case.     State  v.  Sam,  2  Dev,,  567. 

69.  An  endorsement  by  the  foreman  of  the  grand  jury  of  the 
initial  letter  of  his  christian  name,  Avhcre  the  record  of  his  ap- 
pointment states  his  name  at  length,  is  not  a  material  variance. 
State  V.  Collins,  3  Dev.,  117.^ 

70.  In  an  indictment  against  a  person  'of  color  for  an  attempt 
to  commit  a  rape  upon  a  white  female,  it  is  necessary  to  charge 
that  the  assault  was  made  witli  an  intent  to  commit  a  rape.  An 
allegation  that  the  prisoner  feloniously  attempted,  to  ravish  is 
insufficient.     State  Vv  Blartin,  3  Dev,,  321). 

71.  AVhere  acts  are  laid  in  an  indictment  at  several  times, 
without  any  certain  day  as  to  any  of  tJie  acts,  the  indictment  is 
bad  altogether;  but  where  they  are  laid  on  some  day  certain, 
and  also  on  other  days  uncertain,  it  is  void  only  as  to  the  uncer- 
tain days,  and  sufficient  as  to  the  parts  to  which  the  certain 
time  is  annexed.     State  v.  Jasi^cr,  4  Dev.,  323. 

72.  Where  a  county  is  named,  even  in  the  caption  or  margin 
of  an  indictment,  the  words  "in  said  county,"  or  "in  the  county 
aforesaid,"  in  the  body  of  the  indictment,  will  have  sufficient 
reference  to  the  county  in  the  margin  or  caption.  State  v.  May, 
4  Dev.  328. 

73.  In  an  indictment  for  stealing  a  slave,  it  is  sufficient  to  set 
forth  (he  name  of  the  owner  of  the  slave  after  a  svilicit.     Ihid. 

74.  The  connnissioners  of  a  town  are  not,  of  common  right, 
bound  to  repair  the  streets,  and  therefore  an  indictment  against 
them,  for  not  repairing,  must  set  forth  how  that  obligation  has 
been  imposed  upon  them,  ^tate  v.  Commissioneis  of  Halifax,  4 
Dev.,  345. 

75.  In  an  indictment  against  the  commissioners  of  a  town, 
it  is  not  sufficient  to  allege  a  general  breach  of  duty,  but  tlie  in- 
dictment nnist  charge  specifically,  which  of  the  duties  imposed 
has  been  neglected.     Ibid,      i* 

76.  When  an  indictment  is  founded  on  a  private  statute,  the 
6tatute  must  be  set  forth.     Stater.    Cobb,  1  Dev.   and  Bat.,  115. 

77.  An  indictment  for  biting  off  the  ear,  under  the  2nd  section  of 
the  act  of  1791,  myst  state  the  offence  to  have  been  doiie  "  on 

5* 


738  INDICTMENT.— 11. 

purpose,"  as  well  as  unlawfully.     State  v.  Ormond,  1  Der..  and 
Bat.,  119.     (See  Eev.  Code,  ch.  34,  sec.  47.) 

78.  In  an  indictment  for  a  nuisance,  if  the  facts  charged 
must,  from  their  very  nature,  have  created  a  nuisance  to  the 
citizens  in  general,  the  words  "  to  the  common  nuisance  "  may 
be  omitted.  But  if  the  facts  charged  show  an  offence  inconven- 
ient and  troublesome,  that  man  have  extended  its  annoyance  to 
the  community,  or  may  have  reached  only  certain  individuals  of 
that  community,  those  words  become  indispensable.  Sfa^e  v. 
Baldwin,  1  Dev.  and  Bat.,  195. 

79.  But  an  allegation  in  an  indictment,  that  certain  facts 
charged  were  "  to  the  common  nuisance  of  all  the  good  citizens 
of  the  State,"  will  not  make  it  a  good  indictment  for  a  connnon 
nuisance,  unless  those  facts  be  of  such  a  nature  as  mat}  justify 
that  conclusion,  as  one  of  law,  as  well  as  of  fact.     Ibid. 

80.  An  indictment  under  the  act  of  1826,  charging  that  the 
defendant,  on  a  particular  day,  and  on  divers  other  days,  before 
that  day,  sold  and  delivered  spirits  to  certain  slaves,  whose 
names  were  to  the  jurors  unknown,  is  defective  for  uncertainty, 
in  embracing  the  transactions  of  divers  days  with  divers  per- 
sons. And  as  the  names  of  the  slaves  were  not  given,  it  is  also 
defective  for  not  stating  the  owners  of  the  slaves,  or  averring 
that  the  owners  were  unknown,,  if  tlie  fact  were  so.  State  v. 
BhjtJie,  1  Dev.  and  Bat.,  199.     (See  Rev.  Code,  ch.  34,  sec.  87.) 

81.  It  seems  that  a  slave  may  be  described  by  his  name  alone, 
but  it  is  better  for  the  name  of  the  owner  to  be  given  also.  Ibid. 

82.  An  indictment,  which  charges  an  indecent  and  scandalous 
exposure  of  the  naked  person,  "  to  public  view  in  a  public  place," 
is  sufficient,  without  charging  the  act  to  have  been  committed 
ill  the  presence  of  one  or  more  of  the  citizens  of  tlie  State. 
State  V.  Boper,  1  Dev.  and  Bat.,  208. 

83.  It  seems  that  signing  the  name  of  the  foreman  to  the  en- 
dorsement of  "a  true  bill"  on  a  bill  of  indictment,  though  a 
salutary  practice,  is  not  essential  to  its  validity.  But  whether 
this  be  so  or  not,  a  variance  between  the  name  of  the  foreman, 
as  appearing  upon  the  record  of  his  appointment,  and  his  signa- 
ture upon  the  bill,  is  immaterial,  for  his  identity  must  necessarily 
le  known  to  the  court,  and  tlie  receiving  and  recording  the  bill 
with  his  endorsement  establishes  it.  State  v.  Calhooiu  1  Dev. 
and  Bat.,  374. 

84.  Where  an  indictment  charged,  in  effect,  that  the  defend- 
ant, a  constable,  falsely  affirmed  that  a  note  for  the  payment  of 
money  was  a  forthcoming  bt)nd,  and  that,  by  means  of  such  false- 
hood, the  defendant  deceitfully  prevailed  on  the  prosecutor  to 
execute  a  pi-omissory  note  for  the  payment  of  a  sum  of  money,. 
it  tvas  Jield  that  the  charge  Avas  too  vague  and  uncertain,  in  not 
stating  how  the  result  was  produced  by  the  falsehood  practiced. 
State  V,  Fitzgerald,  1  Dev.  and  Bat.,  408. 


INDICTI\IENT.— II.  739' 

85.  Legal  terms  in  an  indictment  must  be  underetood  in  their 
legal  sense,  unless,  by  other  sufficient  and  plain  words,  another 
meaning-  is  impressed  upon  them.     Ihid. 

86.  It  is  a  general  rule  in  indictments  that  "  the  special  man- 
ner of  the  -whole  fact  ought  to  be  set  forth  with  such  certainty, 
that  it  mar  judicially  appear  to  the  court,  that  the  indictors  have 
not  gone  on  insufficient  premises."     Ihid. 

87.  In  an  indictment  under  the  act  of  1830,  against  a  white 
man  for  playing  cards  with  a  slave,  it  is  {sufficient  to  charge  that 
the  defendant  "  unlawfully  did  play  at  a  game  of  cards,  "  with- 
out specifying  the  name  of  the  particular  game  played  with 
the  cards.  State  v.  Bitclde,  2  Dev.  and  Bat.,  29.  (SeeKev.  Code, 
ch.  34,  sec.  11(3.) 

89.  In  an  indictment  on  a  statute,  no  allegation  of  unlawful- 
ness, nor  of  being  against  the  statute,  nor  any  conclusion,  will 
make  good  the  indictment,  if  it  do  not  bring  the  fact  prohibited 
or  commanded,  in  the  doing  or  not  doing  of  which  the  offence 
consists,  within  the  material  words  of  the  statute.  Hence,  if  the 
statute  forbids  the  doing' of  a  particular  act,  without  the  authority 
of  either  one  of  two  things,  the  indictment  must  negative  the 
existence  of  both  tliese  thii^gs  before  it  can  be  supported.  Stcde 
V.  Loftin,  2  Dev.  and  Bat.,  31. 

89.  An  indictment  for  the  murder  of  a  slave  may  conclude  at 
the  common  law.     State  v.  Samuel,  2  Dev.  and  Bat.,  177. 

90.  An  indictment,,  for  a  forcible  trespass  to  chattels,  must 
charge  the  trespass  to  have  been  committed  in  the  presence  of 
the  owner,  and  the  taking  to  have  been  from  his  actual  posses- 
sion.    State  V.  Love,  2  Dev.  and  Bat.,  267. 

91.  All  eri.mes,  which  are  capital,  are  felonies;  although  that 
term  be  not  used  in  the  statutes  creating  them.  The  oflice  of 
the  Xevxn,  felonice,  is  to  describe  the  intent  at  the  instant  of  doing 
a  criminal  act,  to  apprize  the  court  of  the  measure  of  the  pun- 
ishment, and  to  regulate  the  form  of  the  trial.  It  has  no  syno- 
nym, and  is  not  dispensed  with  by  the  act  of  1811,  regulating 
proceedings  on  indictments,  for  it  is  a  matter  of  substance  and 
cannot  be  dispensed  with.  State  v.  Jesse,  2  Dev.  and  Bat.,  297. 
^"-^ee  Rev.  Code,  ch.  35,  sec.  14.) 

92.  An  indictment,  charging  that  the  defendant  did  '•  falsely 
forge,  and  willingly  assent  to  the  falsely  making,"  Occ,  following 
the  words  of  the  statute,  is  in  accordance  witli  precedents  and 
is  sufficient.     Stide  v.  luon/an,  2  Dev.,  and  Bat.,. 348. 

93.  An  indictment,  under  the  act  of  1779,  which  charges  the 
seduction  of  a  slave  to  be  with  an  intent  "to- sell,  dispose  of  and 
"ouvert  to  his  own  use,"  is  suifici^it;  for  the  felony  created  by 

i;  g,ct  is  sufficiently  described,  by  charging  the  seduction  to  bo 
with  an  intent  "to  sell,"  and  the  word',  'dispose  of  and  apprc- 
priate  to  his  ownuse,"  do  not  extend  the  intention  imputed,  beyond 
that  of  an  intention  to  sell,  and  at  most  are  only  redundant.  ^Vnd 


740  INDICTMENT— II. 

cliargiug  the  taldng  to  be  "by  violence,  seduction  or  other 
means,"  is  not  repugnant,  as  both  violence  and  seduction  may 
have  been  used;  but  if  it  were  double,  it  is  aided  by  a  verdict, 
finding  the  taking  to  be  "by  seduction"  only.  The  words, 
*' other  means,"  if  used  alone,  would  be  too  indefinite,  but  taken 
in  connection  with  the  words  "by  violence  and  seduction,"  they 
are  merely  superfluous.  State  v.  Honey,  2  ])ev.  and  Bat.,  390. 
(See  Kev.  Code,  ch.  34,  sec.  10,  by  which  the  former  law  on  the 
subject  is  somewhat  altered.) 

94.  The  slave  need  not  be  charged  to  l)e  of  any  value.     Ibid, 

95.  A  crime,  which  may  be  committed  by  the  agency  of  seve- 
ral means,  is  well  described,  if  charged  to  be  by  the  agency  of 
all,  as  a  forgery  may  be  charged  to  have  been  by  false  making, 
and  by  procuring  to  be  falsely  made.     Ihid. 

96.  An  unnecessary  averment,  whi(;h  renders  an  indictment 
ungrammatical,  does  not  vitiate  it,  although  it  should  be  care- 
fully avoided.     Ibid. 

97.  An  indictment  against  a  justice  of  the  peace,  for  refusing 
to  issue  his  warrant  for  the  arrest  of  a  felon,  must  charge,  either 
that  the  felony  was  committed  in  his  presence,  or  a  tender  of  an 
affidavit  of  its  commission.  It  should  also  charge  that  the  felon 
was  in  the  magistrate's  county  when  the  refusal  occurred.  State 
V.  Leigh,  3  Dev.  and  Bat.,  127. 

98.  In  an  indictment  for  retailing  spirituous  liquors  by  the 
small  measure  without  a  license,  under  the  statute  of  1825,  it  is 
necessary  to  aver  that  the  retailing  was  to  some  particular  per- 
son or  persons,  or  to  some  person  or  persons  to  the  jurors  un- 
known.    /State  V.  Faucctt,  4  Dev.  and  Bat.,  107.     (Seeliev.  Code, 

ch.  34,  sec.  94.)  .        ,      .  n 

99.  In  an  indictment  under  the  statute  for  abusmg  and  car- 
nally knowing  a  female  child  under  the  age  of  ten  years,  which 
charges  the  rape  to  be  "  in  and  upon  one  M.  C,  an  infant  under 
ten  years  of  age,"  &c.,  "  and  her,  the  said  M.  C,  feloniously  did 
unlawfully  and  carnally  know  and  abuse,"  &c.,  is  sufhcient  with- 
out describing  the  hifa'nt  as  a  "female  child,"  nor  is  the  addition 
of  "spinster,"  to  the  name  of  the  infant,  requisite  in  such  an  indict- 
ment.    State  V.  Terr?j,  4  Dev.  and  Bat.,  152. 

100.  In  indictments  for  offences  aganist  the  persons  orproper- 
tv  of  individuals,  no  addition  to  the  names  of  those  individuals 
is  requisite.     1  hid. 

101.  An  indictment  for  a  conspiracy  to  destroy  a  warrant  m 
the  name  of  the  State,  issued  against  a  defendant  on  a  criminal 
charj^-e,  and  a  recognizance  for  the  appearance  of  the  said  de- 
fendant to  answer  sucli  charge,  with  the  intent  thereby  to  im- 
pede the  due  administration  of  justice,  nhonld  positively  aver  that 
such  warrant  did  issue,  and  such  a  recognizance  was  acknowl- 
edged, and  should  also  set  forth  as  much  of  the  warrant  and  re- 
cognizance as  is  necessary  to  show  that  they  were  valid,  and, 


INDICTMENT— 11.  741 

therefore,  that  the  destnictioii  of  theni  ] night  be  prejudicial  to  the 
admiuist ration  of  justice.  Ileuce,  if  the  \varraut  and  recogni- 
zance be  mentioned  only  by  way  of  reference  and  recital,  and  it 
be  not  slated  witla  any  precision  by  whom  tlie  warrant  was  is- 
sued, nor  before  whoui  the  recognizance  was  taken,  and  if  the 
substance  of  the  Avarraut  and  recognizance  be  not  set  forth,  so 
tliat  it  may  be  seen  whether  they.  Or  either  of  them,  liad  legal 
validity,  tlie  indictnjent  will  be  insufficient.  Biafe  v.  Enloc,  4 
Dev.  a] id  r)at.,  olo. 

102.  An  indictment  for  forging  a  bond,  against  one  of  the  ob- 
ligors therein,  may  allege  the  forgery  of  the  wJiole  instrument 
by  hi]n.     Stale  v.  Gardner,  1  Ired.,  27. 

lUo.  An  indictment  charging  the  forging  of  "a  certain  bond," 
instead  of  "a  certain  paper  writing,  purporting-  to  be  a  bond," 
is  good.     Ibid. 

104.  In  an  indictment  for  a  riot,  it  is  necessary  to  aver,  and 
on  the  trial  to  prove,  a  previous  unlawful  assembly;  and,  hence, 
if  the  assembly  were  lawful,  as  upon  a  summons  to  assist  an  of- 
ficer in  the  executioji  of  lawful  process,  the  subsequent  illegal 
conduct,  of  the  persons  so  assembled,  will  not  make  them  rioters. 
Statt  V.  Stulcup,  1  Ired.,  30. 

105.  An  indictment  ought  to  be  certain  to  every  intent,  and 
without  any  intemlment  to  tlie  contrary.  But  if  the  sense  be 
clear,  and  the  charge  sufliciently  explicit  to  support  itself,  nice 
objections  ought  not  to  be  regarded.     State  v.  Fore,  1  Ired.,  378. 

_  lO'J.  It  is  generally  pro]3er  and  necessary  to  describe,  in  an  in- 
dictment, an  ofi'ence  created  by  statute,  in  the  words  of  the 
statute.  But  there  are  a  few  exceptions  to  the  rule.  State  v. 
StiDiton,  1  Ired.,  424. 

107.  In  an  indictment  under  the  act  "for  showing  forth  in 
evidence  "  a  forged  instrument,  although  "  the  showing  forth  " 
must  be  proved  co  have  been  in  a  judicial  proceeding,  yet  it  is 
not  jieceissary  to  state  in  the  indictment,  in  what  suit  or  judicial 
proceeding  it  was  "  shown  forth."  It  is  sufficient  to  state  the 
charge  in  the  words  of  the  act.  Ibid.  (See  Eev.  Code,  ch.  34, 
sec.  oU.) 

108.  Where  a  person  is  called  in  an  indictment  "Deadenea," 
and  it  is  proved  her  name  was  "  Diadenea,"  the  variance  is  im- 
material.    State  V.  Patterson,  2  Ired.,  346. 

lO'J.  Where  one  is  indicted  for  refusing  to  assist  an  officer  in 
securing  a  person  whom  he  has  arrested,  it  is  not  sufficient  to 
state  in  the  indictment  that  this  was  an  arrest  by  lawful  authori- 
ty; the  authority  to  arrest  must  be  set  forth  in  the  indictment. 
State  V.  Siiaw,  3  Ired.,  20. 

110.  In  an  indictment  for  murder,  where  the  assault  is  alleged 
to  have  Ijcen  committed  in  soine  one  county  of  this  state,  and 
the  death  to  have  occurred  in  another  state,  it  is  not  necessary 
that  the  indictment  should  conclude  ayainst  the  form  of  the  stat- 


742  INDICTMENT— II. 

ute;  for,  by  the  statute,  no  offence  is  newly  created,  nor  raised 
to  a  higher  offence,  nor  an  additional  punishment  annexed. 
State  V.  Dimldey,  3  Ired.,  11(5.     (See  Rev.  Code,  ch.  35,  sec.  28.) 

111.  That  part  of  the  'definition  of  murder,  expressed  in  the 
terms  "  the  King's  peace."  refers  not  to  the  place  of  the  assault 
and  death,  but  to  the  state  and  condition  of  the  person  slain,  as 
being  or  not  being  entitled  to  the  protection  of  English  laws; 
for  example,  whether  he  be  a  subject,  or  an  alien  enemy,  or 
traitor  in  arms,  or,  in  more  ancient  times,  an  infidel,  or  a  person 
guilty  of  proemunire.     Ibid. 

112.  An  indictment,  which  charged  that  A.  B.  did  construct 
and  use  a  public  gaming  place  in  the  town  of  H.,  in  the  county 
of  H.,  at  which  a  certaiii  game  of  chance  was  played,  and  that 
the  defendant  at  the  said  toAvn  of  H.  did  play  at  the  said  game, 
"  and  did  tJieii  and  there  bet  money  with  the  said  A.  B.,  at  and 
upon  said  game,  "  is  not  good.  It  does  not  sufficiently  charge 
that  the  playing  and  betting  by  the  defendant  were  at  any  pub- 
lic gaming  place;  the  words  "  tlien  and  there  "  having  reference 
only  to  the  time  and  the  venue,  the  county  of  H.,  and  not  to  the 
public  place  of  gaming  before  mentioned.  State  v.  Lanrjford,  3 
Ired.,  354 

113.  An  indictment  against  an  individual  for  permitting  a 
public  bridge  to  become  ruinous,  which  he  was  bound  to  repair, 
must  set  forth  liow  he  became  subject  to  the  duty  of  making  re- 
pairs.    State  V.  KiiKj,  3  Ired.,  411. 

114.  Where  the  count}"  is  mentioned  in  the  caption  of  an  in- 
dictment, the  last  of  the  words  "then  and  there,"  in  the  body  of 
the  bill,  will  be  understood  as  referring  to  that  county.  State  v. 
Bell,  3  Ired.,  506. 

115.  A  room  in  a  large  building,  which  room  was  separately 
leased  by  the  owner  of  the  building  to  a  merchant,  who  occupied 
it  as  a  store,  it]  having  no  dn^ect  communication  with  the  other 
parts  of  the  building,  is  properly  laid,  in  an  indictment  for  arson, 
as  ihe  property  of  the  lessee.     State  v.  Sandy,  3  Ired.,  570. 

116.  Where  there  is  but  one  statute,  an  indictment,  which  con- 
cludes against  the  form  of  the  statutes,  is  bad,  and,  after  convic- 
tion, judgment  will  be  arrested.  Where  there  are  more  than  one 
statute,  a  conclusion  against  the  form  of  the  statute,  is  also  bad. 
Ihid.     (The  defect  is  now  cured.  See  Rev.  Code,  ch.  35,  sec.  20.) 

117.  Where  a  particular  class  of  persons,  other  than  the  pub- 
lic overseers  of  roads,  are  indicted  for  not  keeping  a  road  in  or- 
der, the  indictment  should  contain  an  averment  "that  it  was 
their  duty,  and  of  right  they  ought  to  have  kept  the  said  road  in 
repair,"  otherwise  judgment  will  be  arrested.  State  v.  Patton, 
4  Ired.,  16. 

118.  The  omission  of  "  North  Carolina,"  in  an  indictment  found 
in  a  court  of  this  state,  where  the  name  of  the  county  is  inserted 


IXDICTMEXT— II.  743 

in  the  margin  or  body  of  the  indictment,  is  not  a  cause  for  arrest- 
ing the  judgment.     State  v.  Lane,  4  Ired.,  113. 

il9.  Where  an  indictment  sets  forth  the  time  of  commission  of 
murder  in  these  words,  "on  the  third  day  of  August,  eighteen  hun- 
dred and  forty-three,"  without  saying  '•  the  year  of  our  Lord,"  or 
even  using  the  word  "  year,"  it  was  held  that,  although  this  de- 
fect wouhl  have  be^sn  fatal  at  common  law,  it  was  cured  by  the 
act  of  1811.     Ihid.     (See  Eev.  Code,  ch.  35,  sec.  14.) 

120.  By  the  act  of  1842,  ch.  10,  a  part  of  the  county  of  Burke, 
and  a  part  of  the  county  of  Rutherford,  were  constituted  a  new 
county  by  the  name  of  McDowell ;  and,  by  a  supplemental  act, 
jurisdiction  of  all  criminal  offences,  committed  in  that  part  of 
McDowell  taken  from  Burke,  was  given  to  the  superior  court  of 
of  Burke.  But  an  ofience  committed  in  ]\IcDo^vell  county 
ought  not  to  1)e  alleged  to  have  been  committed  in  Burke;  for  al- 
though the  jurisdiction  of  the  offence  was  given  to  the  superior 
court  of  Burke,  its  locality  must  be  truly  averred.  State  v.  Fish, 
4  Ired.,  219. 

121.  Where  an  indictment  for  a  rape  charged  that  the  defen- 
dant "  Avith  force  and  arms,  &c.,  in  and  upon  one  Mary  Ann  Tay- 
lor, itc,  violently  and  feloniously  did  make  an  assault,  and  her, 
the  said  ]\lary  Ann  Taylor,  then  and  there  violently,  and  against 
her  will  feloniously,  did  ravish  and  carnally  know,"  is  suliicient 
as  the  court  must  see  with  certainty  that  ]\Iary  Ann  Taylor  was 
a  female.     State  v.  Farmer,  4  Ired.,  224. 

122.  It  is  not  necessary,  in  an  indictment  for  a  rape,  to  state 
that  the  female  ravished  was  of  the  age  of  ten  years.  But  if  she 
be  under  the  age  of  ten  years,  then  that  fact  should  be  averred, 
because  abusing  such  a  female  is  made  felony  by  the  statute, 
whether  she  assented  to  the  act  or  not.     Ihid. 

123.  Where  an  indictment  charges  both  a  selling  hy  a  slave, 
and  a  selling  to  a  slave,  in  the  same  count,  advantage  cannot  be 
taken  of  this,  though  not  strictly  proper,  by  motion  in  arrest  of 
judgment ;  for,  after  trial  at  least,  such  a  defect  in  form  is  cured 
by  the  statute  of  amendment.  State  v.  Hart,  4  Ired.,  246.  (See 
Rev.  Code,  ch.  35,  sec.  14.) 

124.  In  the  2d  section  of  the  act  of  1819,  making  it  indictable 
to  pass  a  counterfeit  bank  note,  "purporting  to  be  a  bill  or  note 
issued  by  order -of  the  president  and  directors,"  &c.,  the  legisla- 
ture did  not  use  the  word  "purporting"  in  its  strict  technical 
sense,  as  meaning  that  these  words  should  appear  on  the  face  of 
the  counterfeit  bill  or  note,  but  in  its  popular  signification  to 
denote  a  bill  or  note,  presumed  to  have  been  issued  by  order  of 
the  president  and  directors  of  a  bank.  An  indictment,  therefore, 
which  sets  out  the  purport  of  the  counterfeit  note,  as  it  really 
appears  on  its  face,  is  sufficient.  Stat3  v.  Harris,  b  Ired.,  287. 
(See  Rev.  Code,  ch.  34,  sec.  61.) 

JL2a»  Aji  ijjdictment  against  a  free  person  of  color,  -whicJa 


744  INDICTiAIENT— II. 

charges  that  he  did  "  buy  of,  traffic  with  and  receive  from  a- 
certain  negro  slave,  &c.,  one  peck  of  corn,"  &c.,  is  good,  although 
the  act,  forbidding  the  dealing  of  free  persons  of  color  and  slaves, 
only  uses  the  words,  "if  he  shall  trade  with  any  slave,  either  by 
buying  of  or  selling  to  him,"  &c.  The  other  words  used  in  the 
indictment  are  mere  surplusage.      State  v.  Cozens,  6  Ired.,  82. 

12(x  The  words  vi  ct  armis,  in  an  indictment  for  murder,  are 
now  superfluous,  ami  more  especially  in  an  indictment  against 
an  accessory,  as  his  oftcnce  tends  only  to  a  breach  of  the  peace, 
and  is  not,  of  itself,  an  actual  breach  of  it.  State  v.  Duncan,  6 
Ired.,  236. 

127.  An  indictment  for  a  libel  must  set  forth  matter  on  its 
face  libellous,  in  which  case  the  court  is  to  judge  whether  it  be 
so  or  not;  or  it  must  aver  that  the  matter  charged,  though  not 
on  its  lace  libellous,  was  intended  in  fact  to  be  so,  and  then  the 
question  is  to  be  submitted  to  a  jury.     jState  v.  White,  6  Ired.,  418. 

128.  The  purpose  of  setting  forth  the  name  of  the  person,  on 
whom  an  oflence  has  been  committed,  is  to  identify  the  particu- 
lar fact  or  transaction,  on  which  the  indictment  is  founded,  so 
that  the  accused  may  have  the  benefit  of  an  acquittal  or  convic- 
tion, if  accused  a  second  time.  The  name  is  generally  required 
as  the  best  mode  of  describing  the  person ;  but  he  may  be  de- 
scribed otherwise,  as  by  his  calling,  or  the  like,  if  he  be  identi- 
fied thereby  as  the  individual,  and  distinguished  from  all  others, 
and  if  the  name  be  not  known,  that  fact  may  be  stated  as  an 
excuse  for  omitting  it  altogether.     State  v.  Angel,  7  Ired,,  27, 

129.  An  indictment,  which  charges  that  A,  B  and  C,  with  force 
and  arms,  &g,,  unlawfully,  riotously  and  routously,  did  assemble 
together  to  disturb  the  peace  of  the  State,  and  did  then  and  there, 
being  so  assembled  and  gathered  together,  make  a  great  noise 
and  disturbance  in  and  near  the  dwelling  house  of  one  W.  S., 
proclaiming  that  the  said  W.  S.  and  his  wife  were  persons  of 
color,  ofiering  them  for  sale  at  auction,  and  calling  them  vulgar 
and  opprobious  names,  all  of  which  was  done  in  a  loud  voice,  so 
that  the  same  could  be  heard  at  a  great  distance,  to  the  great 
damage  and  terror  of  the  said  W.  S.  and  his  wife,  and  to  the 
common  nuisance,"  &c.,  does  not  charge  any  criminal  offence, 
inasmuch  as  it  does  not  state  that  the  said  W.  S.,  or  his  wife, 
was  in  the  house  at  the  time.     State  v.  Hatheock,  7  Ired.,  52. 

130.  Every  indictment  is  a  compound  of  law  and  fact,  and 
must  be  so  drawn,  that  the  court  can,  upon  its  inspection,  be 
able  to  perceive  the  alleged  crime.     Ibid. 

131.  An  indictment,  Avhich  charges  that  the  defendant  did 
keep  a  disorderly  house,  and  "certain  persons,  as  well  free  as 
slaves,  to  frecpient  and  come  together,  then,  and  on  the  said 
other  days  and  times,  there  unlawfully  and  wilfully  did  cause 
and  procure,  &c.,  to  be  and  remain,  drinking,  tippling  and  mis- 
Ixihaving'  themselves,"  &,c.,  is  suflScieiLt  to  charge  a  criminal 


INDICTxAIENT— n.  745^ 

©fience,  M^itliout  setting  forth  the  particulars,  as  the  names  of  the 
parties,  &g.,  though  these  particulars  may  be  given  in  evidence' 
on  the  trial.     State  v.  Fattersooi,  7  IrecL,  70. 

132.  An  indictment  for  a  highway  robbery  may  charge  either 
that  the  robbery  Avas  committed  in  the  highway,  or  that  it  was 
committed  near  the  highway.     State  v.  Anthony,  7  Ired.,  234. 

133.  But  if  the  indictment  charge  that  the  robbery  was  i7i 
the  highway,  the  State  cannot  give  in  evidence  that  it  was  near 
the  highway.  State  v.  Cotvan,  7  Ired.,  239.  (See  Eev.  Code, 
ch.  3-1,  sec.  2.) 

134.  An  indictment  for  a  highway  robbery,  which  charges 
that  the  property  Avas  taken  from  the  person,  and  against  the 
will,  of  the  owner,  feloniously  and  violently,  is  suflficieut.     Ihid. 

135  A  Avharf,  simply  as  such  and  not  being  part  of  a  street, 
is  not  a  public  liighA^-ay,  upon  which  a  highway  robbery  can  be 
committed.     Ibid. 

13(J.  In  an  indictment  for  altering*  the  mark  of  a  cattle  beast, 
it  is  not  necessary  to  set  forth  the  original  mark,  nor  in  what 
manner  the  alteration  Avas  made.     State  v.  O'Neal,  7  Ired.,  257. 

137.  An  indictment  for  trading  with  a  slaA^e  in  the  day  time, 
by  selling  him  spirituous  liquors,  must  negative  an  order  of  the 
owner  or  manager,  as  well  as  a  deliveiy  for  the  OAvner.  But  an 
indictment  for  such  selling  in  the  night  time  need  not  contain 
such  negation,  because  thfi  offence  is  complete,  whether  the 
slave  had  a  written  permission  from  his  owner  or  not.  StcUe  v. 
3mer,  7  Ired.,  275. 

138.  An  indictment  for  murder,  which  charges  the  homicide 
to  have  been  committed  on  the  "tAveflth"  day  of  August,  in- 
stead of  the  "twelfth"  day  of  that  month,  is  good;  if  not  at 
common  laAv,  at  least  under  the  statute,  Eev.  Stat.,  ch.  35,  sec. 
12.  State  \.  Shepherd,  8  Ired.,  195.  (See  Rev.  Code,  ch.  35, 
sec.  14.) 

139.  In  an  indictment  for  murder,  if  the  time  stated  be  ante- 
rior to  the  indictment,  it  is  material  and  only  material  in  one 
respect,  and  that  is,  that  the  day  of  the  death,  as  laid,  is  within 
a  year  and  a  day  of  the  wounding;  and  if  that  appear  from  the 
stating  of  the  month,  the  day  of  the  month  is  immaterial ;  ac- 
cording at  least  to  the  construction  of  the  act  curing  defects  in 
indictments.     Ibid. 

14(>.  An  indictment,  which  charges  that  "A.  B.,  late,  &c.,  at 
&c.,  with  force  and  arms,  &c.,  did  publicly  curse  and  swear,  and 
take  the  name  of  Almighty  God  in  vain,  for  a  long  time,  to  Avit : 
for  the  space  of  tAvo  hours,  to  the  common  nuisance  of  all  the 
citizens  of  the  State,"  &c.,  cannot  be  supported.  For,  to  render 
the  offence  of  profane  swearing  indictable,  the  acts  must  be  so 
repeated  and  so  public,  as  to  become  an  annoyance  and  incon- 
venience to  the  public  for  then  they  constitute  a  public  nuis- 
ance.    State  V.  Jones,  9  Ired.,  38. 


746  INDICTMENT— 11. 

141.  It  is  not  sufficient  to  the  conviction  of  a  defendant,  on 
such  an  indictment  as  the  above,  that  the  State  should  show 
that  the  defendant  had  committed  a  nuisance,  unless  it  be  pro- 
perly charged  as  such ;  nor  will  it  be  sufficient  to  charge  that 
the  facts  were  done  "to  the  common  nuisance  of  all  the  good 
citizens  of  the  State,"  unless  the  facts  so  charged  amount  in 
law  to  a  nuisance.     Ihicl. 

142.  In  an  indictment  for  selling  to  a  slave  in  the  night  time, 
it  is  not  necessary  to  negative  an  order  of  the  owner  or  mana- 
ger, as  the  offence  was  committed,  and  so  alleged  to  be,  in  the 
night  time.     State  v.  Bobbins,  9  Ired.,  356. 

143.  In  such  an  indictment,  the  slave  is  sufficiently  identified 
by  his  name;  and  a  further  description  by  giving  the  name  of 
his  owner  is  unnecessary.     Ibid. 

144.  Although  it  is  not  proper,  in  an  indictment,  to  lay  an 
offence  as  committed  against  "the  act  of  assembly,"  itiste;id  of 
saying  against  "the  statute,"  yet  the  informality  is  cured  by 
our  act.     State  v.  Tribatt,  10  Ired.,  151. 

145.  Where,  in  an  indictment  for  cheating  by  a  false  token  in 
relation  to  the  conveyance  of  land,  the  charge  intended  to  be 
made  is,  that  the  defendant  intended  to  cheat  the  plaintiff  out 
of  twenty  acres  of  land,  the  excess  in  quantity  over  thirty-five 
acres,  the  indictment  should  expressly  aver  that  there  was,  in 
fact,  such  an  excess  of  twenty  acres.  State  v.  Burroivs,  11  Ired., 
477. 

146.  In  an  indictment  for  bigamy,  the  place  where  the  first 
marriage  was  had  is  not  material;  and  it  is  sufficient  to  set  forth 
that  there  was  a  prior  marriage.     State  v.  Bray,  13  Ired.,  289. 

147.  An  indictment,  for  receiving  stolen  goods,  must  aver  from 
whom  the  goods  were  rece  ved,  so  as  to  show  that  he  received 
them  from  the  principal  felon ;  for  if  he  received  them  from  any 
other  person,  the  statute  will  not  apply.  State  v.  Ives,  13  Ired  , 
338.     (See  Eev.  Code,  ch.  34,  sec.  56.) 

148.  Where  a  genuine  instrument  is  altered,  so  as  to  give  it  a 
different  effect,  the  forgery  may  be  specially  alleged,  as  consti- 
tuted by  the  alterations,  or  the  forgery  of  the  entire  instrument 
may  be  charged.     State  v.  Weaver,  13  Ired.,  491. 

149.  An  indictment  for  the  forgery  of  an  instrument,  profess- 
ing to  set  it  out  according  to  its  tenor,  should  give  the  names,  in 
describing  the  instrument,  spelt  as  they  appear  spelt  m  the  origi- 
nal.    Ibid. 

150.  The  wearing,  or  carrying  about  the  person,  or  keeping  in 
his  house,  by  a  free  negro,  of  any  one  of  the  articles  prohibited 
by  the  act  of  1840,  ch.  40,  as  a  rifle,  musket,  bowie  knife,  &.C.,  is 
a  distinct  offence,  and  should  be  so  charged  in  the  bill  of  indict- 
ment. But  where  the  indictment  charged,  in  the  same  count, 
the  carrying  of  a  "  musket,  rifle  and  shot  gun,"  proof  of  the 
.carrying  of  either  one  of  the  articles  is  sufficient  to  justify  a  con- 


INDICTMENT— II.  747 

taction;  and  the  objection  to  the  indictment  cannot  'be  taken  ad- 
vantage of,  either  at  the  trial,  or  upon  a  motion  in  arrest  of 
judgment.  State  v.  LocUear,  Busb.  '205.  (See  Eev.  Code,  ch. 
107,  sec.  66.) 

151.  An  indictment  charging  a  raih'oad  company,  as  the  owner 
of  a  pubHc  ferry,  for  not  keepnig  up  the  same,  must  set  forth 
how  the  duty  of  keeping  up  the  ferry  and  transporting  passen- 
gers became  imposed  by  the  charter  of  the  comj^any.  State  v. 
Wihiu)u/fon  and  Manchester  Bailroad  Comjxiny.,  Busb.  234. 

152.  \Yhere  a  statute  defines  an  oftcnce,  makes  it  indictable 
and  ]:>rescribes  the  punishment,  an  indictment  for  it  is  wholly 
founded  on  this  statute,  although  it  contains  a  reference  to  a 
former  statute,  giving  a  penalty  to  a  common  informer  for  the 
same  act.  Therefore,  if  the  indictment  concludes  against  the 
form  of  the  "  statutes,"  it  is  fatally  defective.  State  v.  Abernathy, 
Busb.,  428.  (Such  a  defect  is  not  now  fatal,  see  Eev.  Code,  ch. 
35,  sec.  20.) 

153.  In  an  indictment  against  a  justice,  for  corruption  in  an 
act  done  in  virtue  of  his  office,  it  is  not  sufficient  to  charge  that 
the  act  was  done  corruptly;  the  facts  must  be  set  out  in  which 
the  corruption  consists.  State  v.  Zachary,  Busb.,  432. 

154.  An  indictment  for  an  affray,  which  siraplv  charges  that 
the  defendants  "  did  make  an  affray,"  without  stating  in  what 
manner,  or  by  what  acts,  is  defective.  State  v.  IVoody,  2  Jones, 
335. 

155.  In  a  charge  against  a  person  of  color,  for  an  assault  with 
an  intent  to  commit  a  rape,  it  is  not  necessary  to  allege  in  the 
indictment  tliat  the  accused  was  a  male,  nor  that  the  white  fe- 
male assaulted  was  a  female  of  the  human  species.  State  v.  Tom, 
2  Jones,  414. 

156.  An  indictment,  charging  that  an  assault  was  made  with 
an  "intention"  to  ravish,  &c.,  instead  of  "intent,"  is  good,  at 
least  under  the  act  of  1^11.  Ibid.  (See  Eev.  Code,  ch.  35, 
sec.  14.) 

157.  Where,  in  an  indictment  for  murder,  the  word  "  bloAv  " 
was  used  instead  of  "  wound,',  but  there  w^ere  words  in  the  con- 
text showing  that  a  wound  was  given,  and  what  kind  of  a  woimd 
it  was;  it  was  Mc7  (Nash,  C.  J.  dissenting,)  that  it  was  an  in- 
formality in  the  indictment,  which  was  cured  by  the  act  of  1811. 
State  V.  Noblett,  2  Jones,  418. 

*'  158.  An  indictment  against  the  commissioners  of  a  town,  for 
failing  to  perform  their  duty  in  keeping  the  streets  of  the  town 
in  repair,  for  a  certain  space  of  time,  nuist  aver  the  tenure  and 
duration  of  their  office,  so  as  to  show  that  they  were  commis- 
sioners when  the  neglect  to  perform  their  duty  occurred.  State 
V.  Commifisioners  of  Raleigh.,  3  Jones,  3D'J. 

159.  Where  the  comimissioners  of  a  town  are  authorized  to 
raise  money  by  taxation,  for  repairing  the  streets,  and  tp  expend 


748  INDICTMENT— II-III. 

it  in  a  particular  way,  viz :  by  letting  out  the  work  to  the  lowest 
undertaker,  it  is  not  sufficient  to  charge  generally,  that  they  re- 
fused and  neglected  to  raise  and  expend  the  money  in  repairing 
the  streets.     Ibid. 

IGO.  In  an  indictment  for  cheating  by  means  of  a  false  token, 
to  wit,  "  a  counterfeit  quarter  of  a  dollar,"  it  is  not  material  to 
aver  of  what  currency  the  counterfeit  quarter  of  a  dollar  was ; 
nor  to  aver  that  the  counterfeit  was  made  like  the  one  alleged  to 
be  imitated,  the  word  "  counterfeit  "  being  a  sufficient  allegation 
of  that  fact.     8tate  v.  Boon.,  4  Jones,  463. 

161.  In  such  an  indictment,  it  is  not  necessary  to  aver  that 
the  counterfeit  money  was  passed;  nor  the  value  of  the  thing 
obtained  by  means  of  the  false  token,  if  such  thing  be  recog- 
nized as  proim'ty;  nor  that  the  thing  obtained  was  the  property 
of  the  person  from  whom  it  Avas  alleged  to  have  been  obtained; 
for  if  the  omission  of  the  latter  would  be  fatal  at  common  law, 
it  is  cured  by  statute,  liev.  Code,  ch.  35,  sec.  14.     Ibid. 

162.  Under  the  Revised  Code,  ch.  34,  sec.  88,  in  an  indictment 
or  warrant  for  the  penalty,  it  is  sufficient  to  aver  a  sale  ot  spir- 
ituous liquor  to  a  slave,  Avithout  the  permission  in  writing  of  the 
person  having  the  management  of  such  slave,  without  adding 
that  it  was  not  for  the  owner  or  manager.  Pope  v.  Luther,  6 
Jones,  413. 

163.  In  an  indictment  for  murder,  where  the  facts  are  so,  it 
may  be  charged  it  was  done  "  in  some  way  and  manner,  and  by 
some  means,  instruments  and  weapons  to  the  jurors  unkuown." 
State  V.  WiUiar]s,  7  Jones,  446. 

164.  An  indictment,  upon  the  29th  section  of  the  107th  chap- 
ter of  the  Rev.  Code,  is  sufficient,  if  it  aver  that  the  defendant 
did  "permit  tlie  said  slave  Peggy  to  keep  house  to  herself  as  a 
free  person,"  and,  in  the  second  count,  "  did  connive  at  said  ne- 
gro slave  keeping  house  to  herself  as  a  free  person."  State  v. 
BucJcwortJi,  1  Winst.,  243. 

See  (Act  of  assembly,  8.)  (Justices  of  the  Peace — Of  the  re- 
sponsibility of  justices,  2.)  (Malicious  mischief,  3-6.)  (Mills — 
Indictments  against  mill  owners  Itn-  keeping  false  toll  dishes,  2 
-3.)     (Peijury,  3-5-7-8-9-10-14-15-17-18-19-20-21-22-23.) 

in.       OF  THE  TRIAL,  VERDICT  AND  JUDGMENT, 

1.  On  an  indictment  for  burglary  and  felonious  stealing,  &c., 
the  jury  may  find  the  prisoner  guilty  of  the  larceny,  though  not 
guilty  of  the  burglary.     State  v.  Grisham,  1  Hay.,  12,  (17.) 

2.  i\.n  indictment  contained  three  counts,  of  the  first  of  which 
the  court  had  no  jurisdiction;  and  the  defendant  Avas,  therefore, 
not  permitted  by  the  court  to  submit  on  that  only,  as  his  con- 
sent could  not  give  it  jurisdiction.  The  submission  must  be 
upon  all  the  counts,  unless  the  solicitor  for  the  State  enter  a 


IXDICTMEXT— III.  74<? 

not  pros,  as  to  tliosc  upon  -u'lnch  there  is  no  submission,     /State 
V.  Boherts,  1  Hay.,  176,  (201.) 

3.  Upon  assaults  with  intent  to  kill,  the  courts  are  not  bound* 
^o  imprison  upon  a  submission  or  conviction.      They  may,  at 

heir  discretion,  inflict  a  fine  only.     Ibid. 

4.  The  proper  process  to  compel  pajinent  of  a  fine  is  a  capia- 
tur  p-o  Jirie,  which  is  issued  when  the  party  is  not  in  court  at 
the  time  when  the  fine  is  laid;  but  when  he  is  in  court,  and  is 
ordered  into  custody,  it  is  improper  to  discharge  him  and  order 
a/,  fa.  to  issue.     State  v.  Johnson,  1  Hay.,  293,  (338.) 

5.  After  conviction,  on  an  indictment  against  a  sheriff  for  a 
false  return,  the  court  will  not  permit  the  State  to  show  that  he 
has  made  false  returns  on  many  other  writs,  to  aggravate  the  fine. 
Ibid. 

6.  In  an  indictment  for  a  riot,  if  one  of  several  be  convicted, 
the  others  not  havnig  been  taken,  he  may  be  punished,  because, 
though  the  others  be  afterwards  acquitted,  he  is  estopped  by  the 
verdict  to  deny  his  guilt.     /State  v.  PugJi,  2  Hay.,  55,  (218.) 

7.  The  act  of  1791,  relative  to  the  kihing  of  slaves,  is  not  cer- 
tain enougli  to  warrant  the  court  in  passing  sentence  of  death, 
upon  a  prisoner  convicted  under  it.  /State  v.  Boon,  Tay.,  24G, 
(103.)  (The  act  has  been  amended.  See  Eev.  Code,  cli.  34, 
sec.  9.) 

8.  In  an  indictment  for  mayhem,  if  no  issue  be  joined  between 
the  State  and  the  defendant,  the  judgment  will  be  arrested. 
Stater.  Fort,  1  Car.  L.  E.,  510,  (122.) 

9.  AA^iei-e  an  indictment  contained  two  counts,  one  for  aiding 
and  abetting  in  a  mayhem,  and  another  for  assault  and  battery, 
and  the  defendant  was  acquitted  upon  the  first,  but  convicted 
upon  the  second,  held  that  no  judgment  could  be  rendered.  Stcde 
V.  Bridges,  1  JNlurph.,  134. 

10.  Females  are  entitled  to  benefit  of  clergy.  Slate  v.  Groy^ 
]  Murph.,  147.  (Benefit  of  clergy  is  now  abolished.  See  liev. 
Code,  ch.  34,  sec.  22.) 

11.  Judgment  shall  not  be  arrested  because  the  venire,  returned 
to  the  superior  court,  consisted  of  forty,  instead  of  thirty-six,  ju- 
rors; nor  because  one  of  the  jin'ors  was  on  the  coroner's  inquest; 
nor  because  it  does  not  appear,  on  the  face  of  the  proceedings, 
that  the  bill  was  found  upon  oath,  nor  that  any  of  the  witnesses 
w^ere  sworn  and  sent  to  the  grand  jury.  State  v,  McEntire,  2 
Car.  L.  E.,  287,  (267.) 

12.  "Where,  in  an  indictment  for  extortion,  the  jury  foimd  that 
the  defendfUit  took  more  than  his  .legal  fees,  but  did  not  take 
them  corruptly,  the  verdict  is  in  effect  one  of  acquittal.  State 
V.  Bright,  2  Car.  L.  E.,  634,  (437.) 

13.  If  an  indictment  for  forgery  contain  a  charge  of  the  crime 
at  common  law,  judgment  may  be  given  on  it,  though  the  prisr 


750  INMCTMENT— III. 

oner  was  indicted  nnder  the  statute.      8iate  v.  WaR'er,  N.  C. 
Term  E.,  229,  (GGl.) 

14.  It  is  the  province  of  the  judge,  in  a  case  of  homicide,  to 
explain  the  h\w  to  the  jury,  leaving  to  them  the  exclusive  de- 
cision as  to  the  truth  or  falsehood  of  the  facts  given  in  evidence. 
Hence,  it  is  not  improper  for  him  to  charge  the  jur_y,  that  "the 
prisoner  was  guilty  of  murder,  or  guilty  of  no  offence  at  all — 
that  it  was  not  a  manslaughter  case,  "  if  the  facts  deposed  to,  if 
believed  y  establish  a  case  of  m^urder.  State  v.  Walker,  N.  C. 
Term  K,  230,  ((iG2.) 

15.  When,  from  the  finding  of  the  jury,  the  party  may  be  in- 
nocentj  he  will  not  be  presumed  guilty.  Hence,  if  a  man  be 
indicted  for  perjury,  in  swearing  that  he  did  not  executes  certain 
deed,  and  the  jury  find  specially  that  he  is  guilty  of  perjury  in 
denying  Ms  signature,  the  judgment  must  be  arrested  ;  for  a  deed 
may  be  executed  without  actual  signing.  /State  v.  Aver  a,  Is.  C. 
Term  R.,  237,  (G69.) 

16.  Where,  upon  an  indictment  for  felony  andj  horse  stealing, 
the  jury  returned  for  their  verdict,  "that  the  prisoner  was  not 
guilty  of  the  felony  and  horse  stealing,  but  guilty  of  a  trespass," 
and  the  court  desired  them  to  reconsider  their  verdict,  and  say 
"  guilty  or  not  guilty,  and  no  more,''  and  the  jury,  thereupon, 
retired  and  returned  a  verdict  of  "  guilty "  generally,  the  su- 
preme court  decided  that  the  first  finding  of  the  jury  should  be 
ordered  to  be  recorded,  and  the  prisoner  discharged;  the  prison- 
er being  entitled  to  such  an  order  whenever  he  is,  either  in 
terms  or  in  effect,  acquitted  by  the  jury.  State  v.  Arrington,  3 
Murph.,  571. 

17.  When  a  jury  returns  an  insensible  or  informal  verdict,  or 
one  that  is  not  responsive  to  the  issues  submitted,  they  may  be 
directed  by  the  court  to  reconsider  it,  but  in  no  other  case.  Ibid. 

18.  Under  the  act  of  181G,  corporal  punishment  and  fiue  can- 
not both  be  imposed  on  a  person  convicted  of  felony  Avithin 
clergy.  And,  under  the  same  act,  wliipping  must  be  restricted 
to  infamous  crimes,  and  the  true  construction  is  to  refer  the  fine 
to  manslaughter,  and  whipping  to  larceny,  and  the  like.  State 
V.  Keainey,  1  Hawks.,  53.  (The  benefit  of  clergy  is  now  abol- 
ished, and  manslaughter  is  punished  by  branding  or  a  fine,  with 
imprisonment,  not  exceeding  twelve  months,  superadded  to  either. 
See  Eev.  Code,  ch.  34,  sees.  22  and  24.) 

19.  A  caption  forms  no  part  of  the  indictment,  and  therefore 
it  is  no  ground  for  aiTcsting  the  judgment,  that  the  indictment 
does  not  show  in  its  caption  that  it  was  taken  in  some  court  in 
North  Carolina.     State  v.  Brickell,  1  Hawks.,  354. 

20.  In  Ciipital  cases,  there  is  no  need  of  a  formal  joining  of 
issue  preparatory  to  trial ;  the  prisoner's  plea,  and  the  sin  i  iter, 
being  ore  terms.     Stcde  v.  Lamon,  3  Hawks,  175. 

21.  When  a  prisoner  in  a  capital  case  has  once  pleaded  "not 


INDIcniEXT— Iir.  751 

guilty,"  he  cannot,  as  a  matter  of  right,  withdraw  it.  and  plead 
ill  abatement,  though  the  court  may,  in  its  discretion,  permit 
him  to  do  so.     Ihid. 

'2-2.  After  a  conviction  for  murder,  it  is  not  a  ground  for  arrest 
of  judgment,  that  one  ot  the  grand  jury,  which  found  the  bill, 
was  one  of  the  coroner's  inquest.     Ihid. " 

23.  It  is  no  ground  for  an  arrest  of  the  judgment,  that  the 
record  ♦states  merely  that  the  "grand  jury  was  duly  drawn, 
swornand  charged,"  without  saying  that  they  were  drawn  frorn 
the  original  panel,  for  it  is  not  necessary  that  the  record  should 
set  forth  the  formula  by  which  the  grand  jury  is  constituted. 
Ibid. 

24.  When  a  nol  pros,  is  entered  to  an  indictment  in  the  county 
court,  the  clefendant  therein  becomes  amenable  on  another  in- 
dictment, in  any  court  having  jurisdiction  of  the  offence ;  other 
wise,  a  nol  'pros,  would  amount  to  an  acquittal.     Slate  v.  McNeil 
3  Hawks,  183.  ' 

25.  The  attorney  general  has  a  discretionary  power  to  enter  a 
nolle  prosequi,  for  the  proper  exercise  of  which  he  is  responsible 
to  the  pubHc;  and  the  court  will  not  interfere,  unless  the  power 
be  oppressively  used.  After  entering  a  nol  pros,  at  the  trial,  he 
may  issue  a  capias  upon  the  same  indictment,  returnable  to  the 
next  term  of  the  court.     State  v.  Thompson,  3  Hawks,  (U3. 

2_().  Corporal  punishment  and  imprisonment  cannot  both  be 
inflicted  on  a  person  found  guilty  of  manslaughter.  Stcde  v. 
Yecdes,  4  Hawks,  187.  {Yov  the  punishment  of  manslaughter 
for  the  first  offence,  see  lie  v.  Code,  ch.  34,  sec.  24.) 

27.  If  an  indictment  for  an  affray  charge  the  parties  with 
"mutually  assaulting  and  fighting  with  each  other,"  they  may 
be  acc^uitted  of  the  affray,  and  one  only  of  them  be  found  guilty 
of  an  assault  and  battery  upon  the'  other.  State  v.  Allen,  4 
Hawks,  35(). 

28.  When,  on  the  removal  of  a  cause,  the  transcript  does  not 
st'ite  either  the  appointment  of  a  foreman  of  the  grand  jury,  or 
a  motion  for  the  removal,  they  may  be  inferred  from  other 'en- 
tries on  the  record.     State  v.  ^Weir,  1  Dev.  363. 

29.  A  jury,  when  charged  with  the  trial  of  a  capital  offence, 
'•annot  be  discharged  without  returning  a  verdict,  unless  for 
some  cause  which  human  sagacity  can  neither  foresee  nor  pre- 
vent; therefore,  where  a  jury  were  charged  with  the  trial  of  a 
prisoner  for  murder,  and,  before  they  returned  their  verdict,  the 
term  of  the  court  expired,  and  the  jury  separated,  it  teas' held 
that  the  prisoner  could  not  be  tried  again.  State  v.  Spier,  1  Dev 
491.  (The  term  is  now  continued  until  such  a  trial  is  ended' 
see  Rev.  Code,  ch.  31,  sec.  16.)  ' 

30.  The  provision  of  the  constitution,  "that  no  person  shall  be 
subject,  for  the  same  offence,  to  be  twice  put  in  jeopardy  of  life  or 
limb,"  not  only  forbids  a  second  trial  for  the  same  offence  after 


752  INDICTMENT— III. 

an  acquittal,  but  also  where  the  jury  have  been  once  charged 
upon  a  perfect  indictment,  and  were  not  prevented  from  return- 
ing a  verdict  by  the  act  of  God,  or  at  the  request  of  the  prisoner. 
Ihid. 

31.  Upon  a  conviction  of  murder,  the  proper  and  formal  entry 
oi  the  verdict  is,  "  guilty  of  tlie  felony  and  murder  in  manner  and 
form  as  he  stands  charged,"  &c ;  but  Avhere  the  jury  thus  respon- 
ded, and  the  entry  was  "  guilty  in  maner  and  form  as  ch.;^rged," 
the  finding  was  held  sufficient,  and  the  prisoner  not  entitled  io 
his  clergy.     State  v.  Upton,  1  Dev.,  513. 

32.  Upon  the  principle  that  Ijelief  is  more  readily  yielded  to  a 
probable,  than  to  an  improbable  proposition,  less  strong  and  ir- 
refragable proof  will  justify  a  conviction  for  a  misdemeanor,  than 
for  a  felony;  but  in  both  cases  there  should  not  be  a  reasonable 
doubt  of  the  guilt  of  the  accused.     State  v.  Cochran,,  2  Dev.,  G3. 

33.  The  manner,  in  which  inferior  courts  exercise  their  juris- 
diction, must  appear  upon  the  record  of  their  proceedings,  and 
no  intendment  is  made  to  support  their  acts;  but  superior  courts 
are  supposed  to  do  every  thing  in  the  prescribed  manner  and 
form.  Therefore,  where  it  appeared  on  the  record  of  the  superi^ 
<  .r  court,  that  a  grand  jury  was  empannelled,  but  it  was  not  sta- 
ted that  they  were  s  •■■orn,  it  was  Iteld  to  be  sulilcient.  State  v. 
Kimbrough,  2  Dev.,  431. 

34.  On  the  trial  of  a  capital  case,  it  is  a  matter  of  discretion 
with  the  court  to  adjourn  in  the  evening  over  to  the  next  morn- 
ing, keeping  the  jury  together,  and  this  without  the  prisoner's 
consent.     I  hid. 

35.  In  the  record  of  an  indictment,  it  is  proper  to  state  it  as 
taken  "  at  a  superior  court  of  law,"  and  not  "  at  a  superior  court 
of  law  and  equity."     Ihid. 

3(1  In  a  record,  which  states  that  "  at  a  superior  court  begun 
and  held,  &c.,  present  the  Hon.  A  B,  judge,"  it  will  be  intended, 
that  the  judge  was  present  in  his  official  character.     J  bid. 

37.  In  courts  of  supreme  original  criminal  jurisdiction,  every 
thing,  as  to  the  method  of  proceeding,  is  presimied  and  taken  to 
be  right,  tmless  the  contrary  appears.  Slate  v.  Seaborn,  4  Dev., 
305. 

38.  Upon  a  conviction  for  arson,  the  convict  is  ousted  of  his 
clergy.     Ibid. 

d)i).  Upon  an  indictment  under  the  act  of  1825,  "  for  carrying, 
conveying  and  concealing  a  slave  on  board  a  vessel,  with  the  in- 
tent, and  for  the  purpose  of  conveying  the  slave  beyond  the  lim- 
its of  the  State,  and  -enabling  him  to  effect  his  escape  out  of  the 
State,"  a  verdict  finding  the  prisoner  guilty  of  the  felony  of  car- 
rying, conveying  and  cojicealing,  as  charged  in  tlie  bill  of  in- 
dictment, is  defective  and  a  venire  de  noco  must  be  awarded. 
State  V.  Edmund,  4  Dev.  340.     (See  liev.  Code,  ch.  34,  sec.  11.) 


IXDICTI\1EXT.— ir.  753 

40.  A  freeman  of  color  is  a  citizen  of  the  State,  and  a  slave  a 
person  within  the  meaning-  of  the  act  of  1825.     Ibid. 

41.  .Misconduct  of  a  juror,  in  a  capital  case,  as  a  separation 
from  his  fellows,  or  drinking  wdthout  the  permission  of  the 
court,  before  delivering  the  verdict,  was  held  to  be  a  reason  for 
applying  to  the  discretion  of  the  judge,  in  the  court  below,  for 
a  ncAv  trial,  but  not  to  render  the  verdict  a  nullity,  and  a  venire 
de  novo  proper.     State  v.  Miller,  1  Dev.  and  Bat.,  500. 

42.  Platte/ alleged  as  a  ground  for  a  venire  de  novo  should  be 
stated  on  the  record,  and  not  brought  forward  in  pais,  as  matter 
for  a  new  trial.     Ibid. 

43.  It  is  no  cause  for  vacating  the  verdict,  or  arresting  the 
judgment,  in  a  capital  case,  for  one  of  the  jurors  in  rendering  the 
verdict,  to  declare  that,  being  forced  by  the  laws  of  his  country 
he  was  bound  to  say  that  the  defendant  was  guilty.     State  v 
Swinke,  2  Dev.  and  Bat.  d.  o       .  -        • 

44.  _  A  jury  charged  in  a  capital  case,  cannot  be  discharged  at 
the  discretion  of  the  court,  before  returning  a  verdict;  they  can- 
not be  discharged  without  the  prisoner's  consent,  but  for  evi- 
dent, urgent,  overruling  necessity,  arising  h-om  some  matter  oc- 
currnig  during  the  trial,  which  was  beyond  human  foresight 
and  control;  and,  generally  speaking,  saich  necessity  must^be 
set  forth  in  the  record.     State  v.  Ephmim,  2  Dev.  and  Bat.  162. 

45.  Forgery  being  a  misdemeanor  only,  the  defendant  is  not 
entitled  to  thirty-five  peremptory  challenges,  under  the  act  of 
1777,  unless  the  offence  is  charged  to  be  a  second  one.  Stoie  v 
Morcion,  2  Dev.  and  Bat.  348.  (See  Eev.  Code,  ch.  35,  sec  32, 
by  w-hich  the  number  of  peremptory  challenges  in  a  capital 
trial  is  reduced  to  twenty-three.) 

46.  Where  there  are  several  counts  in  an  indictment,  the  State 
may  be  ruled  to  elect  upon  which  the  trial  shall  be  had;  but  this 
IS  done  only  to  prevent  injury  to  the  accused,  where  the  counts 
contain  charges  of  distinct  offences,  but  never  where  thev  are 
only  variations  in  the  mode  of  charging  the  same  offence  ''State 
v.  Haney,  2  Dev.  and  Bat.,  300. 

47.  The  act  of  1831,  authorizing  the  hiring  out  of  a  free  person 
of  color,  convicted  of  a  criminal  offence,  for  the  payment  of  the 
fine  imposed,  where  he  is  unable  to  pay  the  same,  does  not  ex- 
tend to  one  who  submits  to  the  court.  State  v.  Oxendine  2  Dev 
and  Bat.,_435.     (See  Ptev.  Code,  ch.  107,  sec.  75.) 

48.  It  is  competent  for  the  court,  after  a  motion  in  arrest  of 
judgment,  to  alter  the  record  during  the  same  term,  by  insertino- 
in,  or  striking  from,  the  minutes,  whatever  may  be  neceS 
sary  to  make  them,  when  enrolled,  speak  the  truth;  and  if,  by 
such  alteration,  the  grounds  for  a  motion  in  arrest  be  removed 
upon  an  appeal  nothing  can  be  looked  to  but  the  record  in  its 
complete  state.     State  v.  Ftoherts,  2  Dev.  and  Bat.,  540. 

40.  A  motion  in  arrest  of  judgment  cannot  be  sustained  on 
6* 


754  INDICTMENT.— III. 

the  ground  that  it  does  not  appear  from  the  endorsement  on  the 
bill  of  indictment,  that  the  witnesses  were  sworn  before  they  were 
sent  to  the  grand  jmy ;  for  the  judgment  can  be  arrested  only 
for  matter  appearing,  or  for  the  omission  of  some  matter  which 
ought  to  appear,  on  the  record,  and  those  endorsements  form  no 
part  of  the  bill.     Ihitl. 

50.  A  person  convicted  of  manslaughter  may  be  burned  in  the 
hand,  and  also  imprisoned  for  any  time  not  exceeding  one  year. 
The  statutes  of  4  Hen.  7,  ch.  13  and  18  Eliz.,  ch.  ^,  not  being 
altered  in  this  respect  by  the  act  of  1816.  State  v.  Henderson^  2 
Dev.  and  Bat.,  543.     (See  Rev.  Code,  ch.  34,  sees.  24  and  25.) 

51.  Where  the  record  set  forth  an  indictment  for  murder,  the 
answer  of  the  prisoner  to  the  enquiry  how  he  would  acquit  him- 
self, the  reply  of  the  attorney  general,  the  order  for  a  jury  to 
come,  and  then  proceeded  "  and  afterwards  in  the  said  case. 
State  V.  T.  H.  C,  indictment,  murder,  the  following  jury  being 
sworn  and  empanneled,  to  wit,  &c.,  who  say  that  the  prisoner, 
T.  H.  C,  is  guilty  of  the  felony  and  murder  in  manner  and  form 
as  charged  in  the  bill  of  indictment,"  it  loas  heldiXvAt  the  record 
showed,  if  not  in  express  terms,  yet  by  nece-  sary  implication  and 
requisite  certainty,  that  the  jury  was  sworn  to  try  the  truth  of 
the  matters  charged  in  the  indictment.  State  v.  Christmas,  4 
Dev,  and  Bat,  410. 

52.  In  capital  cases,  though  it  is  usual  to  make  up  an  issue 
with  the  prisoner  on  his  plea  of  not  guilty,  yet  it  is  not  necessa- 
ry to  do  so.  The  issue  is  immaterial,  for  the  trial  is  in  the  nature 
of  an  inquisition,  in  which  the  jury  is  charged  to  enquire  of  the 
truth  of  the  accusation  contained  in  the  indrictment.     Ibid. 

53.  It  would  probably  not  be  error,  if  the  record  were  to  set 
forth  the  verdict  as  a  finding  on  the  issue  joined  between  the 
State  and  the  prisoner,  where  the  issue  is  joined  on  the  truth  of 
the  indictment,  but  such  is  not  the  regular  form  of  stating  it. 
Ibid. 

54.  It  is  enough  that  the  record,  in  an  indictment  for  murder, 
be  certain  to  a  certain  intent  in  general,.  It  is  not  necessary  that 
it  should  be  certain  to  a  certain  intent  in  every  particidar,  so  as 
absolutely  to  exclude  every  possible  conclusion,  all  arguments, 
presumption  or  inference  against  it.     IJ>id. 

55.  The  officer  prosecuting  for  the  State  has  a  discretionary 
power  to  enter  a  nol.  i^os.,  for  the  ])roper  exercise  of  which  lie 
is  responsible,  though  the  court  would  certainly  interfere,  if  he 
attempted  to  exercise  this  power  oppressively.  State  v.  Buch- 
anan, 1  Ired.,  5i). 

56.  When  a  defendant  is  acquitted  upon  one  count  in  an  in- 
dictment, and  convicted  on  another,  if,  upon  an  appeal,  a  venire 
de  novo  be  ordered,  it  must  be  to  retry  the  whole  case,  ^tate  v. 
'Stanton,  1  Ired,,  424. 

57.  Where  an  indictment  charges  a  rescue,  and  also  an  assault 


INDICTMENT.— III.  755 

md  battery,  and  the  defendant  is  convicted  generally,  if  the 
averments,  as  to  the  rescue,  are  uncertain  and  bad,  these  may  be 
rejected  as  uncertain  and  immaterial,  and  the  coin-t  may  proceed 
to  pass  judgment  upon  the  verdict,  as  for  an  assault  and  battery. 
State  V.  dlorrhon,  2  Ired.^  9. 

58.  Where  the  record  uses  the  past  tense,  as  that  in  the  award 
of  a  venire  facias  the  sheriff  ims  commanded,  or  the  indictment 
tvas  found,  &c.,  this,  though  not  strictly  regular,  has  been  for  so 
long  a  time  the  practice  in  this  state,  that  the  court  will  not  pro- 
nounce it  a  fatal  error.     State  v.  Martin,  2  Ired.,  101. 

59.  It  is  no  ground  foi-  arresting  the  judgment  after  a  convic- 
tion on  an  indictment,  that  it  appears  from  the  record  that  the 
grand  jury,  who  found  tlie  bill,  consisted  of  only  fifteen  jurors. 
Staie  V.  Diivi.%  2  Ired.,  153. 

GO.  By  the  common  law,  a  grand  jnry  may  consist  of  any  num- 
ber between  twelve  and  twenty-three.  Our  statute  upon  the 
-uljjcct  of  a  grand  jury  is  only  directory  to  the  court,  and  does 
not  make  void  a  bill  or  presentment  foinid,  by  a  grand  jury  con- 
sisting of  the  common  law  number.     Ihid. 

61.  Tlie  time,  at  which  a  sentence  in  a  criminal  case  shall  be 
carried  into  execution,  forms  no  part  of  the  judgment  of  the 
court.  Therefore,  where  a  defendant,  who  had  been  convicted 
of  an  assault,  was  sentenced  to  be  imprisoned  for  two  calendar 
months,  "  from  and  after  the  first  day  of  November  next,"  and 
did  not  go  into  prison  according  to  the  sentence,  and,  at  a  sub- 
sequent court,  it  was  directed  that  the  sentence  for  two  months' 
imprisonment  should  be  immediately  executed,  it  icas  held  that 
the  coTU't  had  power  to  make  such  order.  State  v.  Cockerliam, 
2  Ired.,  204 

()2.  When,  upon  a  conviction  for  a  clergeable  offence,  the  de- 
fendant prays  the  benefit  of  clergy,  and  the  officer  for  the  State 
objects  upon  the  ground  that  the  prisoner  has  before  had  it  al- 
lowed him,  he  must  present  the  objection  in  the  form  of  a  coun- 
ter plea  in  writing.  State  v.  Carroll,  2  Ired.,  257.  (The  benefit 
<A'  clergy  is  now  abolished,  and  the  case  of  what  Were  formerly 
v-lergeable  felonies  otherwise  provided  for.  Sec  Eev.  Code,  ch. 
ol,  sec.  22  and  following.) 

(53.  Defendants  in  an  indictment  liave  a  right  to  plead  seve- 
rally, not  guilty,  and  a  general  plea  of  not  guilty  by  all  the  de- 
fendants is,  in  law,  a  several  plea.  But  whether  the  trial  shall 
be ,  separate  or  not,  is  a  matter  of  sound  dist-retion,  to  be  ex- 
ercised by  the  court  under  all  the  circumstances  of  the  case. 
Stale  V.  Smith,  2  Ired.,  402. 

64.  Where  the  jury,  in  a  special  verdict,  do  not  say  that  they 
find  in  one  Avay  or  the  other,  according  as  the  opinion  of  the 
court  may  be  upon  the  law,  the  verdict  is  imperfect.  And  where 
a  special  verdict  is  imperfect  or  bad,  so  that  no  judgment  can  be 


756  INDICTMENT.— III. 

given  thereon,  the  proper  course  is  to  order  a  venire  de  novo. 
State  V.  Wallace,  3  Ired.,  195. 

65.  To  a  tender  of  an  issue  to  the  countiy,  by  a  prisoner,  in  the 
plea  of  "not  guilty,"  in  a  capital  case,  the  atttorney  general  always 
replies  ore  tcnus,  and  the  record  need  not  show  it.  State  v.  Car- 
roll, 5  Ired.,  139.  ^ 

66.  Where  a  prisoner  prays  the  l^enefit  of  his  clergy,  a  coun- 
ter plea  may  be  filed  in  the  name  of  the  prosecutor,  "  for  and  in 
behalf  of  the  State,"  it  the  same  be  adopted  by  the  attorney  gen- 
eral, though  it  should  properly  be  in  his,  the  attorney  general's, 
name.     Ibid. 

67.  If  the  prisoner  contends  that  the  offence,  for  which  he  now 
prays  his  clergy,  Avas  committed  before  his  allowance  of  clergy 
for  a  former  offence,  he  must  avail  himself  of  that  defence  by  a 
plea  of  pardon,  when  brought  up  tor  judgment,  or  by  a  special 
replication  to  the  counter  plea.  Ibid.  (Benefit  of  clergy  now 
abolished,  and  also  the  species  of  pardon  here  referred  to.  See 
Rev.  Code,  ch.  34,  sec.  22  and  23.) 

68.  Where,  in  a  capital  case,  one  of  the  jury,  on  their  coming 
into  court  and  being  polled,  said  "that  when  he  first  went  out 
he  was  not  for  finding  the  prisoner  guilty,  but  that  a  majority  of 
the  jury  was  against  him,  and  that  he  then  agreed  to  the  ver- 
dict of  guilty  as  delivered  in  l)y  the  foreman,"  and,  being 
again  asked,  "What  is  your  verdict  now?"  he  replied,  "  1  find 
tiie  prisoner  guilty,"  it  rvas  held  that  there  was  no  objection  to 
tlie  verdict.    State  v.  Godicin,  5  Ired.,  401. 

69.  Although  it  is  more  correct,  in  maldug  up  the  record  of  a 
criminal  trial,  that  the  presence  of  the  prisoner  should  be  ex- 
pressly affirmed,  yet  it  is  sufficient  if  it  appear  b}^  a  necessary  or 
reasonable  implication ;  as  where  it  is  stated  that  the  prisoner, 
who  had  been  before  committed  to  the  custody  of  the  sheriff, 
was  ordered  to  be  brought  to  the  bar,  and  immediately  thereafter 
he  is  called  l\y  the  jury  in  giving,  and  by  the  clerk  in  record- 
ing, the  verdict,  the  prisoner  at  the  bar,  and  next  the  court,  in 
passing  sentence,  adjudged  that  the  prisoner  be  tol-eji  hack  to  the 
prison.     State  v.  Craton,  6  Ired.,  164. 

70.  After  a  free  person  of  color  has  been  convicted  on  an  in- 
dictment, under  the  act,  for  marrying  a  slave  before  the  act  of 
1845,  it  is  too  late  for  him  to  apply  to  the  court  to  discharge 
him,  on  the  ground  that  the  master  of  the  slave  had  given  his 
consent  to  the  marriage.  The  defence  should  have  been  made 
on  the  trial.  State  \CBolarid,  6  Ired.,  241.  (See  Eev.  Code,  ch. 
107,  sec.  61.) 

71.  Where  the  jury  find  a  general  verdict  of  "guilty,"  the 
court  must  either  pronounce  its  sentence  upon  the  verdict  or 
grant  a  new  trial.  It  cannot  set  aside  the  verdict,  and  direct  a 
judgment  of  acquittal  to  be  entered  for  the  defendant.  State  v. 
'Curtis,  6  Ired.,  247. 


INDIGT^IENT.— III.  757 

72.  Where  the  jury  find  a  verdict  subject  to  the  opinion  of 
the  court  on  a  point  reserved,  the  court  cannot  grant  a  judg- 
ment against  the  verdict,  unless  the  jury  say  "  they  find  such 
and  such  facts,  and  if,  upon  them,  the  court  thinks  the  law  is 
with  the  defendant,  they  find  him  not  guilty,  if  otherwise, 
guilty,"  or  words  in  substance  to  that  effect.     Ihid. 

73.  Where,  on  the  trial  of  an  indictment,  the  jury  find  a  ver- 
dict of  "guilty"  generally,  and  that  appears  on  the  record,  the 
supreme  court  cannot  consider  it  as  a  special  verdict,  subject  to 
the  opinion  of  the  court,  notwithstanding  the  statement  of  the 
case  by  the  judge  so  reports  it.     State  v.  Cox,  6  Ired,,  440. 

74.  Where,  on  the  trial  of  an  indictment  for  murder,  the  pris- 
oner's counsel  objected,  that  the  name  of  the  deceased  as  men- 
tioned in  the  indictment  was  not  his  true  name,  that  was  a  fact 
to  be  tried  by  the  jury.     State  y.  Angel,  7  Ired.,  27. 

75.  A  special  verdict  is,  in  itself,  a  verdict  of  guilty  or  not 
guilty,  as  the  facts  found  in  it  do  or  do  not  constitute  in  law  the 
offence  charged.  There  is  nothing  to  do  but  to  enter  a 
judgment  thereon,  for  or  against  the  accused,  unless  the  court 
should  deem  the  verdict  as  found  not  to  be  sustained  by  the 
evidence,  when  they  mav  set  it  aside  and  order  a  venire  de  novo. 
State  V.  3Joore,  7  Ired.,  228. 

76.  A  judgment  on  a  special  verdict  leaves  the  matter  of  law 
distinctly  open  to  review  in  a  higher  court.     Ibid. 

77.  When  the  court,  in  which  a  special  verdict  is  found,  sets 
it  aside,  as  it  may  do,  it  cannot  of  itself  enter  a  gen- 
eral verdict  of  guilty  or  not  guilty ;  that  can  only  be  done  by  a 
new  jury;  and  if  it  be  done  by  the  court,  it  is  a  mis-trial.     Ibid. 

78.  A  prisoner  may  be  convicted  upon  his  own  voluntary  and 
unbiassed  confession,  without  any  other  evidence.  State  v. 
Cowan,  7  Ired.,  239. 

79.  Upon  a  conviction  on  an  indictment  containing  several 
counts,  one  of  which  is  good  and  the  others  bad,  judgment  must 
be  rendered  for  the  State  upon  the  good  count.  State  v.  Miller, 
7  Ired.,  275. 

80.  Where  the  record  of  the  proceedings,  on  an  indictment  for 
murder,  uses  the  past  tense  instead  of  the  present,  it  is  not  error 
for  which  the  judgment  can  be  arrested.  State  v.  Beeves,  8 
Ired.,  19. 

81.  Where  a  prisoner,  indicted  for  murder,  upon  his  arraign- 
ment pleads  not  guilty,  "and  for  his  trial  puts  himself  on  his 
country,  "  it  is  suflicient,  without  saying  "  on  God  and  his 
country."     Ihid. 

82.  It  is  not  error,  when  a  jury  is  polled,  and  each  juror 
agrees  to  the  same  verdict  of  guilty,  to  enter  it  as  the  verdict  of 
the  whole  jury.     State  v.  John,  8  Ired.,  330. 

83.  It  is  not  necessary  that  the  record  sliould  show  a  venire 


758  INDICTMENT.— TIL 

facias,,  either  original  or  special,,  to  the  term  of  a  coui-t  at  which 
a  prisoner  is  tried.     State  v.  Bar/ield,  8  Ired.,  344. 

84.  Where  the  jury,  on  atrial  for  homicide,  state  "that  the 
prisoner  at  the  bar "  is  guilty,  and  the  clerk  in  recording  the 
verdict  calls  him  "the  prisoner  at  the  bar,"  that  shows,  from  the 
record,  tliat  the  prisoner  was  actually  in  court  when  the  verdict 
was  rendered.     State  v.  Collins,  8  Ired.,  407. 

85.  Where  there  are  different  counts  in  an  indictment  under 
the  statute,  for  steahng  a  slave,  one  charging  a  taking  by  the 
prisoner  with  violence,  and  another  by  seduction,  and  each  of" 
them  also  charging  a  conveying  away  with  the  intents  required 
by  the  statute,  the  jury  are  not  bound  to  find  in  winch  way  the 
taking  was  done,  but  the  verdict  may  be  general,  though  there 
be  other  defective  counts.     State  v.   Williams,  9  Ired.,  140. 

8Q.  It  is  in  the  discretion  of  the  attorney  general,  on  the 
trial  of  a  capital  case,  to  introduce  on  behalf  of  the  State  only 
such  witnesses  as  he  may  think  proper.  State  v.  Steivart,  9  Ired., 
342. 

87.  If,  on  the  trial  of  a  slave  for  a  capital  offence,  the  counsel 
for  the  prisoner  does  not  ask  the  court  to  give  to  a  mulatto  wit- 
ness, introduced  on  the  part  of  the  State,  the  charge  required  by 
the  act,  Eev.  Stat.,,  ch.  Ill,  sec.  51,  no  advantage  can  be  after- 
wards taken  of  the  omission  of  the  judge  to  make  such  charge. 
Ihid.     (See  Eev.  Code,  ch.  107,  sec.  72.) 

88.  Whether  such  a  charge  was  or  was  not  given,  cannot  ap- 
pear upon  the  record,  unless  placed  there  by  the  exceptions  of 
one  or  the  other  of  the  parties.     Ibid. 

89.  Where  several  persons  are  indicted  together  for  a  trespass, 
it  is  not  a  matter  of  right  for  any  of  the  defendants  to  insist,  on 
the  trial,  that  the  jury  should  be  required  to  pass  upon  the  guilt 
or  innocence  of  any  of  the  others,  before  they  pass  upon  the 
whole.  This  is  a  matter  of  discretion  with  the  presiding  judge, 
to  be  exercised  very  cautiously,  and  from  the  exercise  of  which 
there  is  no  right  of  appeal.     State  v.  Bogue,  9  Ired.,  360: 

90.  Where  there  are  two  counts  in  an  indictment,  of  which 
one  is  good  and  the  other  bad,  and  there  is  a  general  verdict 
against  the  defendants,  the  judgment  will  be  presumed  to  have 
been  given  upon  the  good  count  alone.  But  where  both  counts 
are  good,  and  the  court  gives  erroneous  instructions  to  the  jury 
as  to  one  of  the  counts,,  it  is  presumed  that  judment  was  given 
upon  both  counts,  and  a  venire  de  novo  will  be  awarded.  State 
V.  McCanless,  9  Ired.,  375. 

91.  In  this  State,  where  one  is  indicted  and  tried  as  for  a 
felony,  yet  the  facts  averredi  in  the  indictment  do  not  support 
the  charge  of  felony,  but  amount  to  a  misdemeanor,  the  court 
may  give  judgment  for  such  misdemeanor.  State  v.  Upckwch,  d 
IrecT.,,  454. 

92l  Where  a.  defendant  was,  convicted  on  an  indictment  for  a. 


IXDICTMEXT.— III.  759f 

felony,  and  appealed  from  the  judgment  thereon  to  the  supreme 
court,  and  the  error  assigned  in  that  court  was,  that  the  facts 
stated  in  the  indictment  did  not  amount  to  a  felony,  the  supreme 
court,  thouc'h  it  reverse  the  judgment  for  this  error,  yet  will, 
(under  the  provisions  of  the  act  establishing  the  court,)  give  di- 
rections to  the  co\n-t  below  to  give  judgment  for  a  misdemeanor, 
where  it  appears  that  such  is  the  judgment  which  the  court  be- 
low should  have  rendered.     Ibid. 

93.  Upon  the  trial  of  an  indictment  for  an  affray,  after  the 
jury  had  returned  into  court,  and  intimated  an  intention  to  ac- 
quit one  of  the  defendants,  but  had  not  announced  their  verdict, 
the  court  told  them  that,  if  tliey  believed  the  evidence,  both  of 
the  defendants  were  guilty;  whereupon,  the  State's  solicitor  di- 
rected the  clerk  to  enter  a  verdict  of  guilty  as  to  both,  which 
was  done,  and  the  jury  being  asked  if  that  was  their  verdict, 
made  no  direct  assent  but  by  a  nod  from  each  of  them,  it  ims 
held  that  this  proceeding  was  so  irregular  and  contrary  to  the 
estabhslied  mode,  that  the  judgment  should  be  set  aside,  and  a 
ve7i{re  de  novo  awarded.     State  v.  Shule,  10  Ired.,  153. 

94.  A  special  verdict,  which  finds  only  the  evidence  from 
which  facts  may  be  inferred,  is  defective.  It  must  find  the  facts 
themselves.     State  v  Watts,  10  Ired.,  2()9. 

95.  There  is  a  distinction  between  a  cause  for  a  7ieio  trial  and 
a  cause  for  mistrial;  the  former  is  a  matter  of  discretion,  the 
latter  a  matter  of  law.     State  v.  Tilcjhnan,  11  Ired.,  513. 

96.  Where,  on  a  trial,  the  circumstances  are  such  as  merely  to 
put  suspicion  on  the  verdict,  by  showing  not  that  there  was,  but 
that  there  migld  have  been,  unclue  influence  brought  to  bear  on 
the  jury,  because  there  was  opportunity  and  a  chance  for  it;  it 
is  a  matter  within  tlie  discretion  of  the  presiding  judge.  But  if 
the  fact  be,  that  unuue  influence  was  brought  to  bear  on  the  jury, 
as  if  they  were  fed  at  the  charge  of  the  prosecutor  or  prisoner; 
or  if  they  be  sohcited  and  advised  how  their  verdict  should  be ; 
or  if  they  hear  other  evidence  than  that  which  is  offered  on  the 
trial;  in  all  such  cases,  there  has  been  in  contemplation  of  law 
no  trial  and  the  supreme  court,  as  a  matter  of  law,  will  direct  a 
trial  to  lie  had,  whether  the  former  proceeding  purports  to  have 
acquitted  or  convicted  the  prisoner.     Ibid. 

97.  In  indictments  for  misdemeanors,  the  court  may,  without 
the  consent  of  the  defendant,  withdraw  a  juror,  when,  in  its  dis- 
cretion, it  judges  it  necessary  to  the  ends  of  justice.     St<tte  v. 

Weaver,  13  Ired.,  203. 

98.  It  is  not  the  duty  of  the  officer  prosecuting  for  the  State  to 
examine,  on  a  criminal  trial,  all  the  Avituesses  who  were  present 
at  the  perpetration  of  the  act.     *SVor^e  v.  Ferry,  Busb.,  330. 

90.  A\''here  a  record  shows  that  the  prisoner  was  brought  to 
the  bar  in  the  custody  of  the  sheriff,  and  then,  setting  out  the 
drawing,  &c.,  of  the  jury  and  their  verdict^  contains  this  entry, 


760  INDICTMENT.— III. 

"the  prisoner  is  remanded,"  the  presence  of  the  prisoner  during 
the  whole  trial  appears  with  sufficient  certainty,  Statev.  Lanq- 
ford,  Busb.  436. 

100.  Where  a  defendant,  upon  conviction,  is  ordered  into  cus- 
tody until  the  fine  and  costs  be  paid,  and  is  permitted  l^y  the 
sheriff  to  escape,  it  is  no  discharge  of  the  judgment,  which  may 
still  be  enforced.     State  v.  Sim'pson,  1  Jones,  80. 

101.  Where  there  are  two  counts  in  a  bill  of  indictment,  and 
evidence  of  two  similar  offences  proved,  the  court  will  not  order 
the  solicitor  to  select  one  of  the  counts  and  abandon  the  other. 
State  V.  March,  1  Jones,  526. 

102.  Where  a  jury,  after  rendering  an  insufficient  verdict,  in 
a  capital  case,  is  discharged  without  any  objection  from  tlie  pris- 
oner, he  may,  if  the  verdict  purports  to  be  one  of  "guilty,"  be 
tried  again.    State  v.  Woodly,  2  Jones,  276. 

103.  Where  the  record  of  a  conviction  for  murder  shows  that 
a  grand  jury  was  drawn,  empanneled,  sworn  and  charged  to 
enquire  for  the  State,  of  and  concerning  all  offences,  &c.,  and  by 
such  grand  jury,  "it  was  presented  in  manner  and  form  follow- 
ing, that  is  to  say,"  &c.,  (setting  out  the  bill  of  indictment.)  the 
record  is  sufficient  to  show  that  the  bill  of  indictment  had  been 
properly  found,  v/ithout  copying  the  entry  of  "a  true  bill,"  v/hich 
is  usually  endorsed  on  bills  of  indictment,  and  the  judgment  will 
not  be  arrested  for  such  omission.     State  v.  Guilford,  4  Jones,  83. 

104.  Such  arecordissufficienttoshowthattheprisonerwastried 
upon  a  bill  of  indictment  as  required  by  the  act  of  1797,  instead 
of  a  mere  presentment.     Ibid.     (See  R§v.  Code,  ch.  35,  sec.  6.) 

105.  Where  there  are  three  counts  in  a  bill  of  indictment,  and 
testimony  Avas  oftered  as  to  one  only,  a  verdict  of  guilty,  though 
general,  will  he  presumed  to  have  been  given  on  that  count  to 
which  the  testimony  was  applicable,     ^tate  v.  Long,  7  Jones,  24. 

106.  Where  a  defendant  was  put  upon  his  trial  for  petit  lar- 
ceny, and  the  term  expired  before  the  jury  could  agree  upon 
their  verdict,  and  they  left  their  room  and  dispersed  without  re- 
turning a  verdict,  and  the  defendant  went  at  large  without  be- 
ing recognized  to  appear  again,  it  was  lield  that  the  solicitor  for 
the  State  might,  without  leave  of  the  court,  have  a  m|Jifls  issued 
to  take  the  defendant  and  put  him  upon  trial  again.  State  v. 
Tilletson,  7  Jones,  ]  14. 

107.  Where,  upon  the  arraignment  of  one  for  murder,  it  was 
suggested  that  the  accused  was  a  deaf  mute,  and  was  incapable 
of  understanding  the  nature  of  a  trial  and  its  incidents,  and  his 
rights  under  it,  if  loas  held  proper  for  a  jury  to  be  empanneled 
to  try  the  truth  of  these  suggestions,  and  if  they  should  find 
them  to  be  true,  then  the  court  would  decline  to  put  the  prison- 
er on  his  trial.     State  v.  Harris,  8  Jones,  136. 

108.  Upon  the  conviction  of  a  prisoner  in  a  capital  case,  the 
sentence  of  the  court  must  be  carried  into  execution  by  the  sher- 


IXDICTMEXT.— III-IV-V.  761 

iff  of  the  county  where  tlie  trial  took  place,  and  it  is  erroneous 
for  the  court  to  order  it  to  be  executed,  in  the  county  from 
which  it  was  removed,  by  the  sheriff  of  that  county.  State  v. 
Twir/gs,  l.Winst.,   142. 

109.  When  the  record  of  indictment  states  that  the  bill  was 
found  by  a  grand  jury,  but  does  not  show  that  it  was  endorsed 
"  a  true  bill,"  it  is  sufficient;  and  it  is  not  erroneous  that  the  re- 
cord omits  to  state  that  the  ^\dtnesses,  upon  whose  testimony  the 
bill  was  I'ound,  were  sworn  before  they  were  sent.  State  v.  Har- 
wood,  1  Winst.,  228. 

110.  It  is  not  a  ground  upon  which  to  arrest  the  judgment, 
that  the  two  offences  of  permitting  a  slave  to  go  at  large  as  a 
free  person,  and  of  permitting  him  to  keep  house  as  a  free  per- 
son, are  joined  in  the  same  count  of  an  indictment.  State  v. 
Brown,  2  AVinst.,  54. 

See  (Indictment — Plea  of  former  acquittal  or  conviction,  6-7- 
8.)  (Jury — Of  the  conduct  and  province  of  the  jury  in  the 
trial  of  causes,  1-3-5-7-8-9-10-11.)  (Practice— Removal  of 
causes,  2-6-23.)  (Practice — Of  the  trial  and  its  incidents,  13- 
14-15-17-18-19-20.)     (Retailer  of  spirituous  liquors,  3.) 

IT.       HOW  A  PRESEXTMEXT  IS  TO  BE  SIADE,  OR  A  BILL  FOUND. 

1.  A  presentment  need  not  be  signed  by  all  the  grand  jury. 
It  should  be  handed  to  the  court  by  the  foreman,  who  is  the  or- 
gan of  the  grand  jury,  to  and  from  whom  communications  are 
made  with  the  court.  It  should  be  made  in  the  presence  of  the 
jury,  but  when  entered  of  record  no  further  evidence  is  requir- 
ed of  its  authenticity.     State  v.  Cox,  6  Ired.,  440. 

2.  Neither  the  presentment  of  a  grand  jury,  nor  a  bill  of  in- 
dictment requires  that  it  should  be  signed  by  any  one.  It  is  the 
returning  of  the  bill  of  indictment,  publicly  in  open  court,  and 
its  being  there  recorded  that  makes  it  eifectual.     Ibid. 

3.  Where,  on  the  back  of  a  bill  of  indictment,  tlie  clerk  of  the 
court  has  certified,  that  certain  witnesses  were  sworn  and  sent 
to  the  grand  jury,  it  is  sufficient  evidence  that  the  bill  was  sent 
to  the  grand  jury.     State  v.  Collins,  8  Ired.,  407. 

4.  For  the  difference  between  a  presentment  and  an  indict- 
ment, see  State  v.  Guilford,  4  Jones,  83. 

V.   EFFECT  OF  A  NOLLE  PROSEQUI. 

1.  K  nolle  r>roscq}d,  \\i  crimmdX  proceedings,  does  not  amount 
to  an  acquittal  of  the  defendant,  but  he  may  be  again  prosecuted 
for  the  same  offence,  or  fresli  process  may  be  issued  to  try  him 
on  the  same  indictment,  at  the  discretion  of  the  prosecuting  offi- 
cer. The  defendant,  however,  when  a  nolle  j^roseqid  is  entered,  is 


762  INDICTMENT.— Y-VI. 

not  required  to  enter  into  recognizance  for  his  appearance  at 
any  other  time.     State  v.  Thornton,  13  Ired.,  256. 

2.  A  capias,  after  a  nolle  prosequi,  does  not  issue  as  a  matter  of 
course  at  tiie  will  of  the  prosecuting  officer,  but  upo^i  permis- 
sion of  the  court  first  had,  and  the  court  Avill  always  see  that  its 
process  is  not  abused  to  the-  oppression  of  the  citizen.     Ibid. 

See  (Indictment — Of  the  trial,  verdict  and  judgment,  24-25- 
55.)  (Indictment — Of  quashing  indictments,  8.)  (Indictment 
— Limitation  of  time  within  which  an  indictment  will  lie,  10.) 

VI.  PLEA  OF  FORMER  ACQUITTAL  OR  CONVICTION. 

1.  A  former  conviction  of  another  offence,  of  a  different  denomi- 
nation, grounded  on  the  same  facts  as  those  now  relied  on,  is  a 
bar.     State  v.  Ingles,  2  Hay.,  4,  (148.) 

2.  Where  there  was  an  acquittal,  on  an  indictment  for  perjury 
on  an  affidavit  to  cordinue  a  cause,  and  then  the  defendant  was 
indicted  again  on  the  same  ajfidavit  wit  i  an  interdioti  to  procure 
an  (dtachmerd  to  issue,  if  was  held  that  the  plea  of  "former  acquit- 
tal "  to  the  second  indictment  wds  not  sustained.  State  v.  JVil- 
liams,  Conf  Eep.,  474,  {^'1^.) 

3.  Where  one  was  acquitted  on  a  charge  of  stealing  a  note  of 
a  certain  bank,  on  an  account  of  a  mistake  in  setting  forth  the 
name  of  the  corporation,  he  cannot  sustain  a  plea  of  former 
acquittal,  when  charged  for  the  same  act  in  an  indictment  which 
states  the  proper  corporate  name  of  the  bank.  State  v.  JfTdiam- 
son,  3  jMurpli.,  216. 

4.  Where  two  bills  were  found  against  the  same  person  at  the' 
same  term,  in  one  of  which  he  was  charged  with  burglary  and 
larceny,  and  in  the  other,  with  robbery,  in  the  felonious  taking 
the  same  goods-  and  the  prisoner  was  tried  on  the  fiist  bill  and 
convicted  of  the  larceny  only;,  held  that  he  could  not  be  put  on 
his  trial  on  the  second  indictment,  because  it  would  conflict  with 
the  principle  "  that  no  one  shall  be  twice  put  in  peril  for  the 
same  crime;"  and  on  the  refusal  of  the  attorney  general  to  pray 
judgment  on  the  conviction  for  larceny,  the  prisoner  was  allowed 
his  clergy  and  discharged..     Slate  v  Leivis,  2  flawks,  98. 

5.  AVhere  a  bill  of  indictment  for  an  assault  and  battery  was 
found  in  the  superior  court  against  a  person,  who  was  subse- 
quently, but  before  being  taken  to  answer  the  charge  in  the 
superior  court,  indicted  and  convicted  in  the  county  court  for 
the  same  offence,  it  was  field  that  the  county  court  had  jurisdic- 
tion of  the  case,  notwithstanding  the  bill  found  in  the  superior 
court,  and  to  that  bill  he  migM  plead  his  former  conviction  in 
the  county  court.     Strde  v  Tisdale,  2  Dev.  and  Bat.,  159. 

6.  The  finding  of'a  bill  does  not  confine  the  State  to  that  single 
bill ;  another  may  be  preferred,  and  the  party  put  to  trial  on  it, 
although  the  first  remains  undetermined.     I  bid. 


INDICTMENT.— YI.  763 

7.  If  two  iiidictments  for  the  same  offence  be  found  in  the  same 
court,  the  course  is  to  quasli  one,  before  the  party  is  put  to  plead 
on  the  other.  If  in  difi'erent  courts,  the  defendant  ma}^  abate 
the  latter,  by  plea  that  another  court  has  cognizance  ol  the  case 
by  a  prior  bill.  Should  a  plea  in  abatement  not  be  made  to  the 
second  bill,  and  a  conviction  be  had  upon  it,  such  conviction  may 
be  plead  puis  darrien  continuance,  in  bar  of  the  first  bill.     Ibid. 

8.  If,  to  such  a  plea,  fraud  can  be  replied  at  all,  it  must  be 
averred  on  the  record,  and  is  not  to  be  presumed  from  the  mere 
fact  of  the  former  bill  having-  been  found.     Ihid. 

9.  An  acquittal  upon  an  indictment  for  a  rape  against  a  per- 
son of  color,  cannot  be  pleaded  in  bar  to  an  indictment  against 
the  prisoner,  for  an  assault  with  intent  to  commit  the  rape  upon 
a  white  female,  under  the  act  of  1823,  because  both  offences  are 
felonies  created  by  different  statutes,  and  the  latter  requires  dif- 
ferent allegations  in  the  indictment,  and  different  proof  on  the 
trial  from  the  former;  and  because  an  indictment  for  the  com- 
mission of  a  felonious  act  is  not  supported  by  proof  of  an  intent 
to  do  that  act,  and  an  indictment  for  the  latter,  if  a  felony,  may 
be  sustained  after  an  acquittal  upon  indictment  for  the  former. 
Stct'i  V.  Jesse,  o  Dev.  and  Bat.,  98. 

10.  Where  a  person  of  color  had  been  acquitted  upon  an  in- 
dictment for  a  rape,  and  is  subsequently  indicted  for  an  as- 
sault with  intent  to  commit  the  rape  upon  a  white  female,  he 
cannot  object  upon  the  trial  that  the  evidence  proves  an  actual 
rape,  because  the  jury  may  convict  for  the  specific-  charge  con- 
tained in  the  indictment,  notwithstanding  it  may  also  prove  the 
other  charge  for  which  the  prisoner  had  been  formerly  tried  and 
acquitted.     Ibid. 

11.  A  former  accpiittal,  if  it  cannot  be  pleaded  in  bar  to  a  sub- 
sequent indictment,  cannot  be  taken  advantage  of  as  an  estop- 
pel.    Hid. 

12.  It  is  not  sufficient  to  make  a  Judgment  in  one  indictment 
a  bar  to  another,  that  evidence  of  the  facts  alleged  in  the  first 
would  also  be  evidence  of  the  facts  alleged  in  the  other;  as  an 
acquittal  upon  an  indictment  for  burglary  and  stealing  is  not  a 
bar  to  a  second  indictment,  for  the  burglary  wiUi  the  intent  to 
steal.     Ihid. 

13.  An  acquittal  upon  a  former  indictment  can  be  no  bar  to  a 
second,  unless  the  former  were  such  as  the  prisoner  might  have 
been  convicted  u})on,  by  proofs  of  the  facts  contained  in  the  second. 
Ibid.  ^  _     ' 

14.  The  plea  of  autrefois  acquit  is  no  available  defence,  unless 
the  facts  charged  in  the  second  indictment  would,  if  true,  have 
been  sufficient  to  support  the  first.  Thus,  where  the  defendant 
was  indicted  for  retailing  spirituous  liquor  to  one  J.  S.,  and  it 
appeared  that,,  upon  the  same  facts,  under  a  former  indictment 
for  "retailing  to  some  person  to  the  jurors  unknown,"  he  had 


764  INDICTMENT.— VI-VII. 

been  acquitted,  upon  the  ground  that  the  retailing  was  to  the 
said  J.  S.,  and  not  to  one  unknown,  it  was  held  that  the  plea  of 
autrefois  acquit  was  no  bar  to  the  second  indictment.  Sate  v. 
BirmingJ/am,  Busb.  120.     S.  P.,  State  v.  Bevels,  Busb.,  200. 

15.  Where  a  bill  of  indictment  for  an  assault  and  battery  was 
found  against  the  defendant  in  the  superior  court,  and  pending 
the  same,  after  his  knowledge  thereof  and  before  his  arrest,  he 
procured  himself  to  be  indicted  for  the  same  offence  in  the  county 
court,  and  there  voluntarily  submitted  aaid  was  fined,  it  tuas  held 
that  the  conviction  in  the  county  court  was  a  good  plea  in  bar  to  the 
indictment  in  the  superior  court.     State  v.  Casey,  Busb.,  209. 

16.  Where  a  person  has  been  tried  and  convicted  in  the  coun- 
ty court  for  an  affray,  he  cannot  be  indicted  and  tried  in  the  su- 
perior court  for  the  same  act,  on  a  bill  for  an  assault  and  battery. 
State  Y.  Stanly,  4  Jones,  290. 

See  (Evidence — In  criminal  proceedings  and  indictments,  75.) 

Vn.       OF    QCASHmO   INDICTMENTS. 

1.  An  indictment  for  a  forcible  entry,  v/hich  was  found  solely 
upon  the  testimony  of  one  who,  upon  a  conviction,  would  be  en- 
titled to  restitution  of  possession,  will  be  quashed.  State  v. 
Felloivs,  2  Hay.  340,  (520.) 

2.  The  court  will  quash  an  indictment,  wlien  it  is  plain  that 
no  judgment  can  be  rendered  in  case  of  a  conviction ;  as  when 
the  day,  on  which  the  offense  was  committed,  is  not  laid  in  the 
indictment.     State  v.  Bouch,  2  Hay.,  352,  (540.) 

3.  The  court  will  not  quash  an  indictment  for  larceny,  unless 
the  defect  be  plain  and  obvious.  Hence,  they  refused  to  quash 
where  the  caption  of  the  indictment  was  as  follows :  "  State  of 
North-Carolina,  Franklin  count^^,  March  sessions,  1798."  State 
V.  Jeffreys,  Conf  Rep.,  364,  (441.) 

4.  In  cases  of  doubt  the  court  will  not  quash  an  indictment ; 
because  the  defendant,  if  convicted  upon  the  facts  charged,  can 
have  the  same  advantage  of  legal  points  upon  a  motion  in  ar- 
rest of  judgment,  as  upon  a  motion  to  quash.  State  v.  Smith,  1 
Murph.,  213. 

5.  When  a  bill  is  found  by  the  same  grand  jury  that  made 
the  presentment,  on  the  testimony  of  some  of  their  own  body, 
not  sworn  in  court  as  witnesses,  such  proceeding  is  in  opposition 
to  the  act  of  1797,  and  the  bill  must  be  quashed.  State  v.  Cain^ 
1  Hawks,  352.     (See  Eev.  Code,  ch.  35,  sees.  6  and  7.) 

6.  The  power  to  quash  an  indictment,  before  the  defendant 
pleads,  is  purely  a  discretionary  one.  It  is  not  usually  exercised, 
unless  where  the  defect  is  gross  and  apparent,  and  not  then,  if  the 
offence  be  of  a  heinous  nature.  State  v.  Baldwin,  1  Dev.  and  Bat., 
195. 

7.  If  an  indictment  be  found  without  evidence,  or  upon  insuf- 


INDICTMENT— YII-VIII.  765 

licient  e^'idence,  as  upon  the  testimony  of  witnesses  not  sworn, 
upon  proof  of  tlie  fact  the  bill  ma}'  be  quashed,  or  the  matter 
may  be  pleaded  in  abatement.  State  v.  Roberts,  2  Dev.  and 
Bat.,  540. 

8.  Aftei"  a  motion  to  qnash  an  indictment  containing  two 
counts,  one  of  which  is  defective,  the  officer  prosecuting  for  the 
State  may  enter  a  not  pros,  as  to  the  defective  count,  which  will 
remove  the  ground  for  the  motion  to  quash,  and  leave  the  de- 
fendant to  be  tried  upon  the  charge  contained  in  the  good  count. 
Stata  V.  Buchanan,  1  Ired.,  59. 

9.  If  an  indictment  sufficiently  charge  any  offence,  though  not 
the  one  intended,  it  cannot  be  quashed.  State  v.  Evans,  5  Ired., 
603. 

10.  AVhere  one  count  in  a  bill  of  indictment  charges  the  of- 
fence to  have  been  committed  in  one  county,  and  another  count 
charges  it  in  another,  the  counts,  as  a  general  rule,  will  be  re- 
pugnant, and  the  indictment  will  be  quashed  on  motion,  or  the 
prosecutor  will  be  compelled  to  elect  the  one  upon  which  he  will 
proceed.     Skite  v.  Johnson,  5  Jones,  221. 

11.  But  where  a  new  county  is  established  by  act  of  assembly 
out  of  an  old  one,  and  the  act  provides  that  the  felonies,  committed 
in  that  teriitory  which  is  now  the  new  county,  shall  be  tried  in 
the  superior  court  of  the  old  comity,  there  is  no  repugnancy  in 
charging  it  to  have  been  committed  in  these  two  counties,  sev- 
erally, in  different  counts  of  the  indictment.     Ibid. 

12.  On  the  motion  to  quash  an  indictment,  on  the  ground  that 
the  witness,  on  whose  testimony  it  was  found  by  the  grand  jury, 
was  not  sworn  in  court,  it  was  held  that  the  decision  of  the 
judge  in  the  court  below  on  that  question  of  fact  was  conclusive, 
and  could  not  be  appealed  from.     State  v.  Barnes,  7  Jones,  20. 

13.  Though  it  is  discretionary  with  the  court  whether  they 
will  quash  an  indictment,  or  leave  the  party  to  take  advantag-e 
of  the  alleged  defect  in  another  manner,  yet  if  the  court  refuse 
to  quash  upon  the  ground  that  it  holds  the  indictment  to  be  suf- 
ficient, an  appeal  will  lie,  and  if  the  judgment  be  reversed  in  the 
supreme  court,  the  cause  will  be  remanded  that  the  court  may 
act  upon  its  discretion.     State  v.  Brannen,  8  Jones,  208'. 

See  (Indictment — Plea  of  former  acquittal  or  conviction,  7.) 

vni.     VA^IA^■CE  between   the  allegatioxs  and  proofs. 

1.  Where  an  indictment  for  a  libel  charged  that  the  defendant 
set  up  in  public  a  board,  on  which  was  a  painting  or  picture  of 
a  human  head,  with  a  nail  driven  through  the  ear  and  a  pair  of 
shears  hung  on  the  nail,  and  the  proof  was,  that  a  human  head, 
showing  a  side  face  with  an  ear,  a  nail  driven  through  the  ear 
and  a  pair  of  shears  hung  on  the  nail,  was  inscribed  or  cut  in  the 
board  by  means  of  some  instrument,  but  was  not  painted,  it  luas 


766  INDICTMENT.-^VIII. 

held  that  there  was  a  fatal  variance  between  the  allegation  and 
the  proof,  and  that  tiie  defendant  must,  therefore,  be  acquitted. 
State  V  Poioers,  12  Ired.,  5. 

2.  In  an  indictment  for  selling  spirits  to  a  slave,  the  property 
of  one  "  William  INlichaels,"  the  proof  was,  that  the  slave  be« 
longed  to  "  William  A.  Michael,"  and  it  was  held  that,  npon 
the  doctrine  of  idem  sonanSj  there  was  no  Variance.  State  v. 
Hoiiser.  Busb ,  410. 

3.  Where  an  indictment  alleges  a  cheating  in  an  executed 
contract,  and  the  proof  establishes  an  attempt  to  cheat  in  an  ex* 
ecutory  contract,  which  was  abandoned  before  its  consummation, 
there  is  a  variance  which  is  fatal.     State  v.  Corbeif^  1  Jones,  264. 

4.  AVbere  an  indictment  charged  that  the  mortal  blow  was 
given  on  the  27th  December,  and  that  the  deceased,  then  and 
tliere^  instantly  died,  and  the  evidence  was  that  he  lived  for 
twenty  days  after  receiving  the  blow,  it  loas  held  that  the  va- 
riance  was  immaterial.     State  v.  Bal'er,  1  Jones,  267. 

5.  An  indictment  charging  the  defendant  with  going  into  a 
religious  congregation  engaged  in  actual  service,  and  their  ex^ 
hibiting  himself  drunk,  and  by  cursing  and  swearing  with  a 
loud  voice,  and  by  making  indecent  gestures  and  grimaces,  dis- 
turbing it,  is  not  sustained  by  proving  that  he  disturbed  it  by 
striking  tlie  meeting  house  on  the  outside  w4th  a  stick.  State  v. 
Sherr'V,  1  Jones,  608. 

6.  An  allegation  in  a  bill  of  indictment  for  murder,  that  a  hus- 
band drove  his  wife  out  into  the  open  air  and  there  left  her, 
wherebj'-  she  came  to  her  death,  is  not  supported  by  proof  that 
she  voluntarily  and  unnecessarily  remained  in  the  open  air, 
whereby  her  death  was  caused.  State  v.  Preslar,  3  Jones,  421, 
;  7.  The  allegation  of  a  bill  of  indictment,  charging  A  and  four 
others  wdth  an  assault  on  B,  is  not  proved  by  the  production  of 
a  record  which  sets  forth  a  bill  of  indictment,  charging  A  and 

Jive  others  with  an  assault  on  B.     State  v.  Harvell,  4  Jones,  55. 

8.  The  question  as  to  what  is  a  variance  between  the  allega- 
tion and  proof  is  one  of  law,  and  when  made  in  the  court  below 
may  be  reviewed  in  the  supreme  court  iipon  an  appeal.     Ibid. 

9.  An  allegation  in  an  indictment,  charging  that  the  defenl- 
ant  stole  a  certain  Ji.  fa.  "  issued  from  the  superior  court  of- 
fice,"  is  not  sustained  by  proof  that  the  fi.fa.  was  made  out,  but 
retained  by  the  clerk,  at  the  instance  of  the  defendant,  until  the 
amount  was  paid  by  him.     State  v.  McLeod,  5  Jones,  318. 

10.  If  the  name  of  the  owner  of  a  slave  be  set  forth  in  an  in- 
dictment against  one  for  unlawfully  trading  with  the  slave,  it 
must  be  proved  as  laid,  and  a  variance  wdll  be  fatal.  Slate  v. 
Johnston,  6  Jones,  4(S5. 

11.  Upon  an  indictment  for  the  felonious  burning  of  a  barn 
with  grain  or  corn  in  it,  the  prisoner  cainiot  be  committed  upon 
-  u"oof  that  he  burned  a  crib  with  grain  or  corn  in  it.     Slate  v. 


INDICTMENT— VIII-IX  767 

LaugJiHn,  8  Jones,  354. 

12.  WhetlieT,  where  the  manner  of  a  homicide  charged  in  a 

bill  of  indictment  is  by  cutting  the  throat  of  the  deceased  with 

I  knife,  and  the  proof  is,  that  it  was  done  by  blows  inflicted  on 

he  head   Avith  a   gun,  the   variance  is  material,  quaere.     State 

V.  MurpJi,  1  Winst.,  129. 

13.  A  charge,  in  a  bill  of  indictment,  of  a  burglary  with  in- 
tent to  steal,  is  supported  by  proof  that  it  Avas  conjmitted  with 
intent  to  rob.     Sfate  v.  Coch/,  1  Winst.,  1U7. 

See  (Perjury,  1-6-8-16-21:.) 

IX.       LIMITATION    OF     TIME    IN   WHICH    AN    INDICTMENT    WILL    LIE. 

1.  The  indictment,  under  Avhich  a  defendant  is  brought  to 
trial  for  trading  with  a  slave  under  the  75th  section,  ch,"31,  of 
the  Revised  Statutes,  must  be  commenced  within  twelve  months 
after  the  commission  of  the  offence,  according  to  the  80th  section 
of  the  same  chapter;  and  it  is  no  answer  to  this  objection,  that 
another  indictment  for  the  same  oifence  was  brought  Avithin  the 
proper  time.  State  v.  TomUnson,  3  Ired.,  32.  (See  Rev.  Code, 
ch.  34,  sees.  84  and  89.  The  80th  section  of  the  Rev.  Statutes, 
ch.  34,  seems  to  be  omitted  in  the  Rev.  Code,  and  the  indict- 
ment may  be  brought  Avithin  two  years,  as  provided  for  other 
misdemeanors  by  the  8th  sec.  of  the  35th  ch.  of  the  Bev.  Code.) 
_  2.  A  presentment,  made  AA'ithin  two  years  after  the  commis- 
sion of  a  misdemeanor,  on  which  an  indictment  is  founded,  is  a 
commencement  of  a  prosecution  Avithin  the  meaning  of  the  act, 
and  prevents  the  statute  of  limitations  from  attaching.  State  v. 
Cox,  6  Ired.,  440. 

3.  On  an  indictment  for  marrying  a  female  infant  under  the 
age  of  fifteen  years,  AAdiere  the  defendant  relies  upon  the  statute 
of  limitations  as  to  prosecutions  for  misdemeanors,  proof  that  the 
marriage  Avas  by  consent  of  the  mother,  and  Avas  solemnized  by 
a  minister  of  the  gospel  in  the  presence  of  six  or  seven  persons, 
and  tha,t  the  parties  lived  together  afterwards  openly  as  man  and 
Av-ife,  shall  protect  the  defendant  from  the  operation  of  the  pro- 
viso, that  the  offence  Avas  committed  in  secret.  State  v.  Watts, 
10  Ired.,  369.  (See  Rev.  Code,  ch.  35,  sec.  8.) 
_  4.  So,  Avhere  the  parties  Avent  to  an  adjacent  county  to  be  mar- 
ried, and  afterwards  returned  to  the  county  of  their  domicil, 
where  they  lived  together  as  man  and  Avife,  theflx-t  being  known 
to  the  community,  and  the  defendant  continuing  in  the  open  ex- 
ercise of  his  duties  as  a  minister  of  the  gospel,  it  cannot  be  held 
that  he  absconded  from  the  county,  in  which  he  was  married,  or 
concealed  himself,  so  as  to  bring  his  case  within  the  operation  of 
the  second  part  of  the  said  proviso.  Ibid.  (See  Rev.  Code,  ch. 
35,  sec.  8.) 

5.  It  is  not  necessary  nor  convenient  to  introduce,  in  an  in- 


768         INDICTMENT— INFANTS  AND  INFANCY. 

dictment  for  a  misdemeanor  to  which  the  statute  of  Hmitation» 
applies,  averments,  Avith  a  view  of  taking  the  case  out  of  the 
statute,  by  bringing  it  within  the  proviso.     Ibid. 

6.  The  offence  of  conspiracy  to  cheat  and  defraud  is  not  em- 
braced within  the  exceptions  of  the  act,  Eev.  Stat.,  ch.  35,  sec. 
8,  hmiting  the  time  witliin  which  prosecutions  for  misdemeanors 
shall  commence.  State  v.  Christianbuiy,  Busb.,  46.  (See  Rev. 
Code,  ch.  35,  sec.  8.)  _ 

7.  The  word  "  deceit "  in  the  act  seems  to  have  been  used  for 
"  cheating  by  false  tokens,"  which  olfence  may  be  committed  by 
one  person,  and  is  distinct  from  the  offence  of  "  conspiracy,"  tlie 
gist  whereof  consists  in  the  confederation  by  two  or  more  to  do 
tlie  act  charged.     Ibid. 

8.  The  State,  on  a  trial  for  a  misdemeanor,  is  not  restricted  in 
its  proof  to  the  time  stated  in  the  indictment,  where  the  time 
is  not  a  part  of  the  offence,  butmay  show  that  it  was  committedat 
any  time  within  two  years  previous  to  the  finding  of  the  bill. 
State  V.  Netvsom,  2  Jones,  173. 

8.  Where  a  bill  of  indictment  for  a  misdemeanor  was  found 
against  the  defendant  by  a  wrong  name,  which  he  abated  by 
plea,  and  a  second  bill  was  sent  and  found,  if  ivas  held,  that  the 
second  bill  was  but  a  continuation  of  the  first,  which  had  been 
found  within  two  years  after  the  commission  of  the  offence,  and 
that  was  sufficient,  though  the  new  bdi  was  found  after  the  two 
years.     State  v.  Hailey,  6  Jones,  42, 

10  If,  in  such  case,  the  solicitor  for  the  State  had  entered  a 
not.  pros.,  and  discharged  the  defendant,  he  might,  by  virtue  of 
the  proviso  in  the  Rev.  Code,  ch.  35,  sec.  8,  have  sent  a  new  bill 
within  one  year,  both  indictments  being  against  the  same  pcrsan 
for  the  same  offence.     Ibid. 


INFANTS  AND  INFANCY. 

1.  An  infant  who  has  been  arrested  in  a  civil  suit,  will  b'e  dis- 
charged from  custody  on  motion,  upon  the  fact  of  infancy  being 
made  to  appear  to  the  court  by  inspection,  or  the  examination  of 
witnesses.     Henry  v.  Smith,  Mar.,  56,  (54.) 

2.  When  an  iiifant,  Avho  had  conveyed  his  land  by  a  deed, 
after  coming  of  age  had  said  to  the  bargainee :  "  I  will  never 
take  advantage  of  my  having  been  an  infant  at  the  time  of  exe- 
cuting the  deed,  and  it  is  my  wish  that  you  should  keep  the 
land,"  it  was  held  to  be  a  confirmation  of  his  deed,  notA\-ith 
standing  he  afterwards   conveyed  the  same  land  to  another. 


rNFANTS  AND  INFANCT.  769^ 

Bomer  y.  Reynolds,  1  Hay.,  143,  (166.)     (See  Hoijle  v.  Stoive,  2 
Dev.  and  Bat,  320.) 

3.  A  promise,  to  defeat  the  plea  of  infancy,  must  be  an  express 
one,  made  after  the  infant  came  of  age.  Alexander  v.  Hidcheson, 
2  Hawks,  535. 

4.  The  promise,  made  by  a  person  to  perform  a  contract  en- 
tered into  while  he  was  an  infant,  may  be  inferred  from  any 
words  or  acts  which  show  the  acquiescence  or  assent  of  his 
mind.  It  is,  however,  an  inference  ot  fact,  to  be  drawn  by  a 
jury.     Alexander  v.  Huicheson,  1  Dev.  13. 

5.  If  an  infant  Hve  with  his  father,  who  provides  for  him 
every  thing  which,  in  his  judgment,  appears  to  be  proper,  the 
infant  cannot  bind  himself  to  a  stranger,  even  for  such  articles 
as  might,  under  other  circumstances,  be  deemed  necessaries. 
But  if  the  infant  live  apart  from  his  father,  laboring  and  receiv- 
ing the  profits  of  his  labor  for  his  own  use,  he  is  2^^'o  tempore  act- 
ing as  his  own  man,  by  the  assent  of  his  father,  and  will  be  liable 
for  necessaries  suitable  to  his  condition.  Smith  v.  Young,  2  Dev. 
and  Bat,  26. 

6.  The  question,  whether  necessaries  or  not,  is  a  mixed  one  of 
law  and  fact  Whetlier  the  articles  furnished  to  an  infant  are  of 
the  classes,  for  which  he  is  liable,  is  a  matter  of  law;  whether 
they  Avere  actually  necessary  and  of  a  reasonable  price,  is  a 
matter  of  fact.     Jbid. 

7.  A  deed  of  bargain  and  sale  made  by  an  infant  is  avoided 
by  his  executing,  at  his  arrival  of  full  age,  another  deed  of  the 
same  kind,  and  for  the  same  land,  to  another  person.  Hoyle  v. 
Stmce,  2  Dev.  and  Bat,  320. 

8.  It  seems  that  to  ratify  a  bargain  and  sale  made  by  an  infant, 
some  act  done  after  full  age,  proceeding  upon  the  notion  that 
the  estate  created  by  the  deed  subsists,  is  necessary,  as  the 
receipt  of  the  purchase  money  and  the  like.     Ihid. 

9.  The  disability  of  infancy  can  be  insisted  on  only  by  the 
infant,  or  his  privies  in  blood;  and  privies  in  estate  cannot'  take- 
advantage  of  it.  But  after  the  infant  has  avoided  his  deed,  it 
may  be  disaffirmed  by  any  person.     Ihid. 

10.  A  feofment  by  an  infant  must  be  avoided  by  an  entry, 
before  another  person  can  maintain  ejectment,  because  it  passes 
the  land  itself,  and  creates  a  defeasible  estate.  But  a  deed  oper- 
ating under  the  statute  of  uses  does  not  transfer  the  land,  and 
only  such  uses  are  executed  ;)«s  are  enforced  in  chancery;  and 
no  use  is  there  raised  by  the  contract  of  an  infan':  to  sell  his 
land.  It  seems,  therefore,  that  it  may  be  disaffirmed  without  an 
entry,  and  by  plea  of  not  guilty  and  liberum  tcnementnm;  and 
also  that  ejectment  cannot  be  maintained  on  it,  without  showing 
a  confirmation  after  full  age.     Ibid. 

11.  The  possession  of  a  ven<lee  tdcon  under  a  deed  from  an 
infant  whether  that  deed  is  to  be  considered  as  void  or  voidable 

I* 


770  INFANTS  AND  INFANCY. 

only,  is  adrerse  to  the  infant — and  much  more  is  such  the  case 
where  the  deed  has  been  executed  by  the  infant  jointly  with 
others— and  the  infant  cannot,  after  he  conies  of  age,  convey  a 
valid  title  to  the  land,  while  such  adverse  posaesnion  continues. 
Murray  v.  ShanJdiri,  4  Dev.  and  Bat.,  289. 

12.  Where  an  infant  executed  a  deed  for  land,  by  signing, 
sealing  and  delivering  it,  and  after  he  came  of  age  endorsed  on 
it  "  I  have  signed  the  Avithin  deed  for  the  expressed  purposes ; 
and  with  the  desire  to  ratify  the  same  I  hereunto  affix  my  hand 
and  seal,"  and  after  signing  and  sealing  the  endorsement,  deliv- 
ered the  instrument  to  the  vendee  again,  it  was  held  that,  if  the 
deed  ^^Tere  absolutely  void  in  the  first  instance,  it  was  rendered 
valid  by  the  re-delivery,  and  if  only  voidable,  the  endorsement 
under  the  hand  and  seal  of  the  vendor  was  a  proper  act  of  con- 
firmation.    Ibid. 

13.  A  contract  made  by  an  infant  to  work  a  certain  specified 
time  with  a  carpenter,  upon  the  consideration  of  the  hitter's 
boarding  and  clothing  him,  and  learning  him  the  trade,  is  not 
binding  upon  the  infant,  and  he  may,  at  any  time,  leave  the 
service  of  the  carpenter,  provided  he  has  not  arrived  at  full  age 
and  confirmed  the  contract.  Francis  v.  Felmit,  4  Dev.  and 
Bat.,  498. 

14.  If  an  infant  have  been  furnished  with  necessaries,  while 
working  with  a  mechanic  to  learn  his  trade,  upon  an  action  of 
assumpsit  brought  against  the  infant  for  the  value  of  the  neces- 
saries, it  is  a  good  defence  under  the  plea  of  non  assumpsit,  that 
the  defendant's  services  in  work  and  labor  were  equal  to,  or 
exceeded  in  value,  the  necessaries  famished.     Ibid. 

15.  Where  an  infant  purchased  land  and  gave  his  note  for  the 
purchase  money,  and,  after  he  l)ecame  of  age,  continued  in  posses- 
sion of  the  land  and  promised  to  pay  the  2iote,  it  iras  held  that 
this  was  a  confirmation  of  a  contract  by  the  infant  after  he 
became  of  age,  and  he  and  his  representatives  were  bound  by  it. 
Armfield  v.  Tate,  7  Ired.,  258. 

16.  A  person  cannot  recover  of  an  infant,  who  has  a  guardian, 
for  board  and  other  necessaries,  where  the  charges  exceed  the 
infant's  income.     Hnssey  v.  Rountrec,  Busb.,  110. 

17.  A  step-father,  though  he  is  not  bound  to  support  his  step- 
children, nor  they  to  render  him  any  service,  yet  if  he  maintain 
them,  or  they  labor  for  him,  in  the  absence  of  any  express  agree- 
ment, they  will  be  deemed  to  have  dealt  with  each  other  as 
parent  and  child,  and  not  as  strangers.     IJ)id. 

18.  A  having  sold  a  horse  to  B,  an  infant,  and  taken  a  note 
for  the  price,  and  B  having  refused  to  pay,  the  contract  was  re- 
scinded, the  horse  returned  and  the  note  surrended.  It  tvas 
held  in  an  action  on  the  case  by  A  against  B,  for  an  injury  to  the 
Jiorse  while  in  B's  possession,  that  the  sale  was  binding  upon  A; 
that  B  was  possessed  under  it  as  owner,  and  not  as  bailee,  and 


INFANTS  AND   INFANCY.  771 

that  consequently  the  action  would  not  lie.     Poe  v.  Home,  Biisb., 
398. 

19.  Where  an  infant,  who  was  sued  on  a  bond  given  for  two 
old  slaves,  after  he  came  of  age  proposed  in  writing  to  give 
them  back  and  pay  half  the  note,  and  added  "  if  they  will  not 
accept  the  aoove  offer,  I  will  have  to  pay  them  I  suppose,  but  I 
shall  do  so  at  my  convenience,  as  it  will  be  nothing  less  than  a 
free  gift  on  my  part,  the  negroes  being  entirely  valueless;"  it 
was  Iteld  that  this  did  not  render  the  infant  liable  on  his  bond. 
Dicnlop  V.  Hales,  2  Jones,  o81. 

20.  The  law  will  imply  a  promise,  on  the  part  of  infants  having 
no  parents  or  guardian,  to  pay  for  necessaries  furnished  to  them. 
Hyman  v.  Cain,  o  Jones,  111. 

21.  A  compromise  made  by  an  infant  legatee,  whereby  he 
received  specific  chattels  of  less  value  than  the  legacy,  is  not  bind- 
ing on  him;  but  he  is  bound  to  account  for  the  value  of  the 
things  he  received,  and  a  deduction  of  the  amount  of  such  value 
must  be  made  from  the  legacy.     Tipton  v,  Tipton,  3  Jones,  552. 

22.  Timber,  furnished  an  infant  to  enable  him  to  build  a 
dwelling  house  on  his  land,  is  not  a  necessary,  for  which  he  can 
be  made  lial)le.     Freeman  v.  Bridger,  4  Jones,  1. 

23.  An  infant,  who  has  a  guardian,  cannot  contract  even  for 
necessaries.     Ibid. 

24.  Where  an  infant  bastard  grandson  was  recognized,  raised 
and  taken  care  of  by  his  grandfather  until  he  w^as  fifteen  years 
old,  it  teas  held  that  the  relation  between  the  parties  reliutted 
the  implication  of  a  promise  by  the  grandfather,  to  pay  for|work 
and  labcn-  done  by  the  boy  on  his  grandfathers  farm.  Hudson 
V.  Lntz,  5  Jones,  217. 

25.  Although,  at  common  law,  a  boy  under  fourteen  years  of 
age  is  not  inchctable  for  an  ordinary  assault  and  battery,  yet  if 
the  battery  be  of  an  aggravated  kind,  as  if  it  be  a  maim,  or  be 

lone  with  a  deadly  weapon,  or  if  it  be  an  act  prompted  by 
uibridled  lust,  as  an  attempt  to  commit  a  rape,  he  may  be  in- 
licted  and  punished,  if  it  appear  that  he  was  dvli  capax.  State 
V.  Pufjh,  7  Jones,  Gl. 

26.  An  infant,  who  has  executed  a  deed  for  land,  cannot  make 
the  deed  eitlier  void  or  valid  l)y  any  act  of  his,  done  while  under 
age.  And  to  make  the  deed  valid,  he  must,  after  coming  of  age, 
do  !some  deliberate  act,  by  Avhicli  betakes  benefit  under  the  deed, 
or  expressly  recognizes  its  validity.  McCormic  v.  Le(j(jett,  8 
Jones,  425. 

See  (Judgment — Of  irregular,  void  and  erroneous  judgments, 
o3.)  (Practice — Appearance  and  proceedings  against  one  of 
several  defendants,  5.)     (Habeas  corpus,  1-2.) 


772  IN  FOKMA  PAUPEKTS— INJUNCTION"  BOND,  ETC. 

IN  FORMA  PAUPERIS. 

See  (Costs — Security  for  costs,  2-4-5.) 


INJUNCTION  BOND. 

See  (Bonds — Of  the  construction  of  bonds,  and  of  their  condi- 
tion, 4-10-14-15-16-17-19.)  (Bonds — Proceedings  in  suits  upon 
bonds,  9.)     (Debt — When  the  action  will  lie,  5.) 


INNS  AND  INNKEEPERS. 

1.  A  common  innkeeper  is  liable  for  any  loss  his  gxiest 
may  sustain  in  his  property,  except  it  be  by  the  agency  of  a  ser- 
vant or  companion  of  the  guest  himself,  or  where,  when  the  inn 
is  full,  the  guest  is  admitted  upon  tei^s.  Quinton  v.  Courtney,  1 
Hay.,  40,  ('51.) 

2.  An  individual,  who  acts  as  ordinary  keeper,  without  taking 
out  license  and  giving  bond,  but  who  has  a  license  to  retail 
spirituous  liquoi'S,  may  be  indicted  under  the  act  of  1798  for  ex- 
acting more  than  the  rates  established  hj  the  court  of  his 
county,  and  he  is  estopped  from  denying  that  he  is  a  tavern 
keeper.  State  v.  Wynne,  1  Hawks.,  451.  (See  Rev.  Code,  ch. 
79,  sec.  3.) 

3.  One  who  entertains  strangers  onl}-  occasionally,  although 
he  receives  compensation  for  it,  is  not  an  imikeeper;  and  if  on 
such  occasions,  gambling,  drinking  and  fighting  take  place,  he 
is  not  indictable  as  the  keeper  of  a  disorderly  house.  State  v. 
3Iatthews,  2  Dev.  and  Bat.,  424. 

4.  An  innkeeper  is,  by  the  custom  of  the  land,  liable  as  an 
insurer,  for  the  goods  and  animals  which  his  guest  has  with,  him 
for  the  purpose  of  his  journey.  But  if  his  customer  is  only  a 
boarder,  or  the  goods  and  animals  are  entrusted  to  the  landlord 
upon  a  special  contract,^  or  if  they  are  not  placed  in  the  inn  or 
its  appurtenances  to  be  kept,  he  is  only  liable  for  negligence  as 
any  other  bailee.  Hence,  an  innkeeper  is  not  liable,  without 
proof  of  negligence,  for  the  loss  of  a  mule  put  by  a  drover  into 
a  lot  belonging  to  the  landlord,  separate  from  the  inn,  to  be  kept 
under  a  special  agreement.     Neal  v.  Wilcox,  4  Jones,  146. 


INSOLVENT  DEBTORS— L 


773 


INSOLVENT  DEBTORS. 


I.  Proceedings  under  insolvent  debt- 

ors' acts  [irior  to  the  act  of  1822. 

II.  Proceedings  under  the  act  of  1822 

and  subsequent  acts. 
III.  Of  the  property  to  be  laid  off  for  an 
insolvent  debtor  under  the  acts  of 
18.44  and  1848. 


IV.  Of  the   creditor's  liability    for    the 
maintenance  of    his    debtor   in 
jail. 
V.  Gf  the  prioiity  of  the  claim  of  the 
United  States  and  the  State. 


I.     PROCEEDIXG  UXDER  IKSOLVEXT  DEBTORS'  ACTS  PRIOR  TO  THE  ACT  OF  1822. 

1.  Ten  days'  notice  must  bs  given  to  the  creditors  before  ta- 
king the  insolvent  debtor's  oath.  Kennedy  v.  JFairman,  1  Hay., 
408,  (470.)     (See  Rev.  Code,  oh.  58.)  _ 

2.  An  insolvent  shall  not  be  discharged,  if  he  will  not  account 
for  property  proved  to  have  been  in  his  possession  shortly  be- 
fore, and  sold  to  one  who  had  acted  as  his  partner  in  trade.  Ibid. 

3.  A  discharge  under  the  insolvent  debtor's  act,  ordered  by 
the  proper  officers,  will  be  presumed  to  have  been  regularly  done, 
until  the  contrary  be  shown.     Pearh  v.   Folsom,  1   Hay.,  413, 

4.  Under  the  first  insolvent's  act  ot  1773,  the  defendant  was 
discharged,  only  as  to  those  who  had  commenced  suits  against 
him,  and  to  whom  notice  had  been  given  of  the  debtor's  applica- 
tion.    Ibid. 

5.  Previous  to  the  act  of  1809,  a  debtor,  imprisoned  for  debt, 
was  entitled  to  th.e  benefit  of  the  act  fur  the  relief  of  insolvent 
debtors,  by  remaining  within  the  prison  bounds,  under  a  bond 
given  for  that  purpose,  for  the  space  of  twenty  days.  Milelr  v. 
Huntei',  1  ^lurph.,  394.  (See  Rev.  Code,  ch.  59,  sec.  27,  which 
restores  the  law  as  it  was  before  the  act  of  1809.) 

6.  When  a  defendant,  in  execution  under  the  prison  rules,  is 
afterwards  thrown  into  prison  by  another  creditor,  he  has  a  right 
to  be  discharged  from  the  walls  of  the  prison  under  the  insol- 
vent laws.     In  the  matter  of  Huntington,  2  Murph.,  369. 

7.  A  debtor  imprisoned  under  a  ca.  so..,  who  takes  the  oath  of 
insolvency  under  the  provisions  of  the  act  of  1773,  and  is  dis- 
charged, is  protected  from  arrest  at  the  suit  of  any  other  cred- 
itor, to  whom  he  was  indebted  at  the  time,  by  virtue  of  the  39th 
section  of  the  constitution  of  this  state.  Burton  v.  Dickens,  3 
Murph.,  103.     (See  Rev.  Code,  ch.  59,  sees.  1  to  6.) 

8.  To  entitle  the  debtor  to  this  protection,  he  must  deliver  up 
all  his  property  real  and  personal,  bona  fde,  for  his  creditors. 
Notice  to  other  creditors  is  not  necessary,  although  the  efiect  of 
his  discharge,  as  to  them,  will  be  protection  from  arrest  at  their 
suit.     Ibid. 

,9.  When  the  debtor  delivers  up  his  estate  for  the  use  of  his 


774  INSOLVENT  DEBTOES— I-IL 

creditors,  and  commissioners  are  appointed,  who-  give  notice  to 
the  creditors  to  come  in  and  receive  their  dividends,  each  credi- 
tor has  an  option  to  come  in  or  not.  If  he  come  and  receive 
his  dividend,  his  debt  is  satisfied;  if  he  do  not,  he  may  sue  out 
execution  against  such  property  as  the  debtor  may  thereafter 
acquire.     Ihid. 

10.  Where  a  debtor  was  taken  under  a  ca.  sa.  at  the  instance 
of  one  creditor,  and  gave  bond  with  sureties  for  keeping  within 
the  prison  bounds,  and  afterwards  was  taken  under  another  ca. 
sa.  at  the  instance  of  another  creditor,  and  committed  to  close 
prison,  and  gave  notice  to  both  creditors  of  his  intention  to  take 
the  benefit  of  the  oath  for  the  reKef  ol  insolvent  debtors,  and  ac- 
cordingly on  the  day  appointed  the  oath  was  administered  to 
him,  and  he  was  discharged,  it  was  held  that  he  was  properly 
discharged  as  to  both,  and  it  was  no  breach  of  his  bond  for  the 
prison. bounds  that  he  afterwards  went  at  large.  Hoicard 'v. 
Fasteur,  3  Murph.,  270. 

11.  In  proceedings  under  the  act  of  1773,  for  the  relief  of  in- 
solvents, the  single  fact  to  to  be  ascertained  is  honest  insolvency ; 
and  when  this  is  ascertained  by  the  mode  prescribed,  either  in 
the  first  or  third  section,  the  consequence  to  the  debtor  is  the 
same;  and  he  is  entitled  to  be  discharged  from  imprisonment  as 
to  all  creditors  by  the  oUth  article  of  the  constitution.  Jordan 
v.  James,  3  Hawks.,  110. 

12.  The  discharge  of  a  debtor  from  prison  under  the  act  of 
1773,  as  modified  in  the  Revised  Code,  ch.  59,.  sec.  1,  that  is, 
where  he  shall  have  remaiiied  in  prison  twenty  days  and  been 
discharged  by  two  magistrates  out  of  court,  Avill  not  protect  the 
debtor  from  arrest  at  the  instance  of  any  other  creditor  than  the 
one  at  whose  suit  he  was  in  prison,  even  though  such  other 
creditor  had  notice  of  the  debtor's  application  to  be  discharged. 
Griffin  V.  Simmons,  5  Jones,  145. 

13.  Where  one  was  in  close  custody  for  costs,  and  gave  notice 
to  the  clerk  of  his  intention  to  take  the  oath  of  insolvency,  and 
the  clerk  appeared  and  tendered  an  issue  of  fraud  before  the 
two  justices  to  whom  the  application  was  made,  whereupon  the 
justices  sent  the  proceedings  to  the  superior  court,  in  which  the 
costs  accrued,  it  was  held  that,  under  the  59th  ch.  of  the  Eev. 
Code,  the  issue  was  properly  triable  ia  that  court.  State  v.  Car- 
roll, 6  Jones,  458. 

See  (Prison  Bounds.) 

II.       PROCEEDINGS  UNDER  THE   ACT  OF  1822,  AND  SUBSEQUENT  ACTS. 

1.  A  debtor  convicted  o\  a  fraudulent  concealment  of  his  ef- 
fects upon  an  i^sue  between  him  A,  and  ordered  into  custody 
thereupon,  according  to  the  act  of  1822,  is  not  in  execution  at 
the  suit  of  B,  another  creditor,,  in  whose  case  no  such  conceal- 


INSOLVENT    DEBTOES— II.  775 

ment  "^as  suggested  or  found.     Folsom  v.    Gregory^  1  Dev.  233. 
(See  Kev.  Code,  cb.  59,  sec.  12,  and  following.) 

2.  A  sheriff  is  not  bound  to  take  notice  that  the  defendant  in 
a  ca.  sa.  is  not  entitled  to  the  benefit  of  the  act  of  1822,  and 
where,  Avithout  actual  notice  that  the  contract,  on  which  the  ac- 
tion was  brought,  was  prior  to  the  time  prescribed  in  the  stat- 
ute, he  took  a  bond  pux'suant  to  the  act  on  executing  a  ca.  sa., 
it  VKis  held  that  it  was  not  an  escaj)e.  Jones  v.  Dunn,  1  Dev., 
32  a 

3.  A  bond  given  under  the  act  of  1822,  for  the  appearance  of 
an  insolvent  at  court,  is  good,  if  it  be  for  double  the  original 
debt,  exclusive  of  interest  and  cost,  and  judgment  may,  on  mo- 
tion, be  rendered  upon  it.      Williams  v.    Yarborough,  2   Dev.,  12. 

4.  The  sureties  to  a  ca.  sa.  boiid,  taken  under  the  act  of  1822 
for  the  relief  af  insolvent  debtoi's,  to  protect  themselves  b}^  a  sur- 
render of  their  principal,  must  make  it  in  the  court  to  which  the 
ca.  sa.  is  returnable,  or  to  the  slieriff  of  the  county;  and  Avhere 
the  writ  issues  to  another  county,  a  surrender  to  the  sheriff  of 
that  county  is  a  nullity.     Mcxnnng  v.  James.,  2  Dev.,  254. 

5.  The  right  of  the  ]3laintiff  in  the  execution  to  a  summary 
judgment  survives  to  his  personal  representative.     Ihid. 

G  A  condition  "  to  appear  and  claim  the  benefit  of  the  act, 
<.^c.,  and  not  depart  the  court  without  leave,"  is  substantially  the 
same  as  that  prescribed  in  the  act.     Ibid. 

7.  Where  the  defendant  in  a  ca.  sa.  appeared  at  the  return 
day  of  the  writ,  and,  upon  an  issue  being  made  up,  the  cause  was 
continued,  and  afterwards  the  defendant  made  default,  JieM,  that 
the  condition  was  broken,  and  the  plaintiff  entitled  to  judgment. 
Ibid. 

8.  The  defendant  in  a  ca.  sa.  bond,  given  under  the  act  of 
1822,  is  bound  to  attend  at  every  term  until  the  cause  is  finally 
disposed  of     Arringkm  v.  Bass,  3  Dev.,  1)5. 

y.  Under  the  act  of  1822,  for  the  relief  of  insolvent  debtors, 
the  sickness  of  the  surety  is  no  excuse  for  the  default  of  the  prin- 
cipal.    Speight  v.  IVooten,  3  Dev.,  327. 

10.  A  discliarge  of  an  insolvent,  under  the  act  of  1822,  protects 
him  from  ari'est  by  those  creditors  onl}'-,  who  had  notice  of  his 
intention  to  apply  for  it.     Grain  v.  Long.,  3  Dev.,  371. 

11.  A  defendant,  wlio  has  given  bond  under  the  act  of  1822 
for  the  relief  of  insolvent  de])tors,  cannot  object  to  the  informali- 
ty of  the  Ijond,  and  pray  a  discharge  on  account  thereof  Page- 
v.  Winninghavi,  1  Dev.  and  Bat.,  113. 

12.  A  person,  who  is  surrendered  in  discharge  of  his  bail,  is 
entitled  to  the  benefit  of  the  act  of  1822  for  the  relief  of  insol- 
vent del)tors.  SmxiUwood  v.  Wood.  2  Dev.  and  Bat.,  356.  (See 
Eev.  Code,  ch.  59,  sec.  (3.) 

13.  The  act  of  1822  for  the  relief  of  insolvent  debtors  extends 
only  to  debts  arising  ex  contractu,  and  not  to  those  incurred  for 


T76  INSOLVENT  DEBTOES— IT. 

a  penalty,  or  ex  delicto. —  Woolard  v.  Dean,  2  Dev.  and  Bat.,  490. 

14.  Tlip  bond  for  the  defendant's  appearance,  nnder  the  act  of 
1822  for  the  rehei  of  insolvent  debtors,  connected  with  the  exe- 
cution, is  in  the  nature  of  process  to  compel  an  appearance,  and 
the  return  day  thereof  must  be  certain.  Window  v.  Anierson,  3 
Dev.  and  Bat.,  9.  - 

15.  Where  a  co.  sa.  was  issued  from  a  spring  term  of  a  superi- 
or court,  returnable  to  the  ensuing  fall  term  thereof,  and  was 
executed  upon  the  defendant  within  less  than  twenty  days  of 
such  fall  term,  and  the  sheriff  thei'eupon  took  bond  and  security 
from  the  defendant  under  the  act  of  1822,  which  bond  was  dated 
more  than  twenty  days  before  such  term,  and  was  conditioned 
for  the  defendant's  appearance  "at  the  next  superior  court  of 
law  to  be  held,  &c.,  on  the  7th  Monday  after  the  4th  Mondaij  of 
March  next,  then  and  there,"  &c.,  and  at  the  next  spring  term, 
which  sat  on  the  Cth,  instead  of  the  7th  Monday  after,  &c.,  upon 
the  defendant's  not  appearing,  a  judgme  it  was  talceu  upon  the 
bond  against  him  and  nis  surety,  v..  loas  held  that  the  judgment 
was  irregular,  and  that  whether  the  bond  was  to  be  prepared  by 
the  sheriff  or  the  defendant  made  no  difference,  as  the  judgment 
was  against  the  surety  as  well  as  the  principal,  and  there  was  nr. 
default  of  appearance  according  to  the  bond,  and  also  that  the 
words  "next  court"  would  not  control  the  specified  time  of  the 
Ith  .Monday  cfter  the  4zth  3Ionday  of  March  next.     Ihid. 

16.  The  act  of  1838,  which  provides  that  if  any  persow  shall  be 
convicted,  in  any  court  of  record  in  this  state,  of  any  crime  or 
misdemeanor,  and  shall  be  in  execution  for  the  fine  and  costs  of 
prosecution,  and  shall  have  remained  in  prison  for  the  space  of 
twenty  days,  he  may  be  discharged  in  the  manner  tlierein  pre- 
scribed, do2S  not  repeal  the  act  of  1831,  ch.  13,  providing  for  the  hi- 
ring out  of  free  negroes  and  free  persons  of  color  for  fines  imposed 
uponthem,  except  ^s  the  last  expression  of  the  legislative  will  ne- 
cessarily abrogates  so  much  of  that  act  as  stands  in  the  way  of  its 
provisions.  State  v.  ManneJ,  4  Dev.  and  Bat.,  20.  (See  Rev.  Code, 
ch.  59,  sec.  1  and  ch.  107,  sec.  75.) 

17.  Upon  a  schedule  filed  by  one  tahen  under  a  ca.  sa.,  and 
desirous  to  avail  himself  of  the  benefit  of  the  act  for  the  relief  of 
insolvents,  it  is  not  competent  for  the  court  to  order,  nor  for 
the  clerk  to  issue,  a  writ  to  the  sheriff  to  sell  the  scheduled  prop- 
erty, or  so  much  thereof  as  will  satisfy  the  plaintiff^'s  debt  and 
costs,  and  have  the  same  ready  at  the  next  term  to  render,  "  to 
the  court  or  to  the  parties  entitled  to  receive  the  same;"  and  it 
is  consequently  no  breach  of  the  sheriff's  bond  for  him  to  tail  or 
neglect  to  execute  such  writ.  Governor  v.  Harrison,  4  Dev.  and 
Bat,  4(31. 

18.  The  property  and  debts  contained  in  such  schedule  vest  in 
the  sheriff,  as  assignee,  to  sell,  collect  and  pay  into  court  for  the 
.benefit  of  all  creditors;  and  the  proper  course,  to  enforce  the  per- 


INSOLVENT   DEBTOKS— II.  777 

formance  of  the  sheriff's  duties  in  relation  thereto,  is  to  have  a 
rule  of  court  on  the  sheriff  to  sell  the  property  and  collect  the 
debts  so  assigned,  and  bring  the  money  into  court,  and  to  at- 
tach him  for  a  contempt  if  the  rule  be  not  complied  with.  Ibid. 
(See  Kev.  Code,  ch.  59,  sec.  21.) 

19.  When  the  principal  obligor,  in  a  bond  given  for  his  ap- 
pearance at  the  county  court,  to  take  the  beneht  of  the  act  for 
the  relief  of  insolvents,  is  regularly  called  at  court,  and  failing  to 
appear  judgment  is  gendered  against  him  and  his  surety  in  the 
bond,  tlie  surety  has  no  right,  ex  dehifo  justicioe,  to  come  in  on  a 
subsequent  day  of  the  term,  and  have  the  judgment  set  aside,  in 
order  to  allow  him  to  make  a  surrender  of  his  principal.  In  such 
case  the  court  may,  undoubtedly,  in  the  exercise  of  a  sound  dis- 
cretion, set  aside  the  judgment,  and  allow  the  surrender;  but  it 
is  not  obliged  to  do  so,  but  upon  good  cause  shown,  as  that  the 
party  has  a  good  defence,  and  was  kept  away  by  accident  or 
misfortune.     Beynolds  v.  Boi/d,  1  Ired.,  106. 

20.  It  is  no  objection  to  a  man's  taking  the  insolvent  debtor's 
oath,  imder  the  acts  of  assembly,  that  he  has  conveyed,  in  a  deed  in 
trust  to  satisfy  certain  creditors,  an  amount  of  property  greater 
in  value  than  the  amount  of  debts  secured  by  the  deed,  when 
he  sets  forth  the  deed  in  his  schedule  and  surrenders  all  his 
resulting  interests.     Adams  v.  Alexander,  1  Ired.,  501. 

21.  Where  one,  who  applies  to  take  the  insolvent  debtor's  oath, 
upon  rendering  a  schedule,  sets  forth  in  his  schedule  that  he  has 
made  a  deed  in  trust  of  certain  property  to  satisfy  certain  cred- 
itors, and  surrenders  all  his  interest  in  the'  property  mentioned 
in  such  deed,  it  is  still  competent  for  the  opposing  creditor  to  have 
an  issue  made  up  to  try  whether  the  said  deed  is  not  fraudulent; 
and  if  so  found  by  the  jury,  to  cause  the  debtor  to  be  imprisoned 
until  he  surrenders  the  property  itself     Ibid. 

22.  When  a  person  has  been  ari'ested  on  a  ca.  sa.  and  given 
bond  for  his  appearance  at  court,  to  take  the  insolvent  debtor's 
oath,  and  the  case  is  continued  until  the  next  term  of  the  court, 
a  notice  served  on  his  creditors  ten  days  before  the  terra,  to 
which  the  cause  is  continued,  is  a  sufficient  notice  under  the  act 
for  the  relief  of  insolvent  debtors.  Watson  v.  JVillis,  2  Ired.,  17. 
(See  Rev.  Code,  ch.  59,  sees.  10  and  11.) 

23.  If  such  debtor  appear  at  the  first  term,  or,  in  case  of  a  con- 
tinuance, at  the  term  to  which  the  cause  was  continued,  though 
he  has  failed  to  give  due  notice,  or  lor  any  other  cause  is  not 
pernmtted  to  take  the  oath,  yet  no  judgment  can  be  rendered 
against  his  sureties  in  the  bond,  who  are  only  responsible  for  his 
appearance.     Ibid. 

24.  On  motion  for  a  judgment  against  the  sureties  to  the  bond 
of  a  debtor,  given  under  the  act  for  the  relief  of  insolvents,  it 
was  objected,  first,  that  the  christian  names  of  the  plaintiffs  were 
not  inserted  in  either  the  Avarrant,  judgment  or  ca.  sa.,  and,  sec- 


778  INSOLVENT  DEBTORS— 11. 

oiidly,  that  tlie  bond  was  not  made  to  the  plaintiffs  by  their 
christian  names.  It  loas  held  that  the  first  objection  was  not  valid, 
because  the  imperfection  was  cm^ed  after  judgment  by  the  statute 
of  amendments,  and  the  ca.  sa.  properly  pursued  the  judg-ment, 
and  gave  the  officer  authority  to  make  the  arrest  and  take  the 
bond;  and  that  the  second  objection  was  invalid,  because  the 
officer  literally  pursued  the  statute  in  taking  the  bond,  and  the 
averment  of  the  christian  names  of  the  plaintiffs  in  the  motion 
was  equivalent  to  a  similar  averment  in  a  declaration  in  debt  on 
such  a  bond.  Wall  v.  Jarrott,  3  Ired.,  42,  S.  P.  Lash  v.  Arnold, 
8  Jones,  206,  overruling  CoJioon  v.  Morton,  4  Jones,  256. 

25.  A  debtor  arrested  under  a  ca  sa.  gave  bond  for  his  appear- 
ance at  the  county  court,  and  on  his  appearance  an  issue  of  fraud 
was  made  up,  on  which  the  jury  found  the  fraud  and  conceal- 
ment alleged,  and  the  court  ordered  the  debtor  to  be  imprisoned 
until  he  made  a  full  disclosure  of  his  effects,  from  which  judg- 
ment the  debtor  appealed,  giving  bond  and  security  therefor. 
In  the  superior  court  the  issue  was  again  tried  and  found  against 
the  debtor,  but  upon  being  called  he  failed  to  appear.  It  teas  held 
that  the  plaintiffs  were  entitled  to  judgment  against  the  sureties 
to  the  appeal  bond  for  their  debt  and  costs.  Upon  such  an  appeal 
the  debtor  is  bound  to  appear  in  the  superior  court,  as  he  orig- 
inally was  in  the  county  court.      IVill-im/s  v.  Bara/hn,  o  Ired.,  86. 

26.  Although  the  ca.  sa.  on  which  the  debtor  was  arrested  may 
have  been  defective,  yet  it  is  not  compefent  for  the  sureties  to 
the  appeal  bond  to  make  that  objection  after  judgment  has  been 
rendered  against  their  principal.     Ibid. 

27.  If,  upon  a  ca.  sa.  from  a  justice  returnable  to  the  county 
court,  instead  of  being  returnable  before  a  jvistice  out  of  court 
within  three  months,  the  defendant  upon  being  arrested  gave 
bond  to  appear  at  the  county  court  to  take  the  benefit  of  tlie  in- 
solvent debtor's  law,  and  he  fail  to  appear  at  the  time  appointed, 
and  the  court  render  judgment  against  him  and  his  sureties, 
such  court  cannot  hear  any  objection  at  the  same  term  against 
such  judgment;  and,  certainly,  it  cannot  at  the  succeeding  term 
vacate  such  judgment.     Dobbin  v.  GaMer,  4  Ired.,  71. 

28.  A  debtor,  who  proposes  to  take  the  benefit  of  the  insol- 
vent's act  may,  at  any  time  after  his  arrest  upon  a  ca.  sa.,  and 
before  he  files  his  schedule,  transfer  any  portion  of  his  property 
bona  fide  for  the  payment  of  any  of  his  debts,  contracted  before 
his  arrest;  for  a  ca.  sa.  binds  nothing  but  the  debtor's  body,  and 
leavef^his  property  free  to  be  disposed  of  for  any  bona,  fide  jim^ose 
of  discliarging  his  other  debts.     Cheek  y.  Davis,  4  Ired.,  284. 

29.  Any  objection  to  a  bond  given,  by  an  insolvent  debtor  ar- 
rested under  a  ca.  sa.,  must  be  made  at  the  court  to  which  the 
bond  is  returnable  and  before  judgment  is  rendered  on  it.  Watts 
V.  Bo7jle,4:  Ired.,  331. 

30.  Though  the  law  says  that  the  officer,  who  has  arrested  a 


INSOLVENT  DEBTOES— IL  779 

person  on  a  ca.  sa.  and  taken  bond  for  his  appearance  at  court, 
shall  return  the  process  and  bond  on  or  before  the  second  dav  of 
the  term,  yet  the  court  may,  if  it  think  proper,  order  him^  to 
return  them  on  the  first  day.     Ex  parte  .Summers,  5  Ired.,  149 

31.  Where  a  person  is  arrested  on  a  ca.  sa.,  and  an  issue  of 
fraud  is  made  up  between  him  and  his  creditor  in  the  county 
court,  and  upon  the  issue  being-  found  against  the  debtor,  he  ap- 
peals to  the  superior  court,  the  sm-eties  for  the  appeal  are  bound 
absolutely  for  whatever  judgment  may  be  rendered  against  their 
principal  in  the  superior  court;  and  such  sureties  have  no  right 
to  surrender  their  principal  to  the  sheriff  in  discharge  of  them- 
selves.     Williams  v.  Floyd,  5  Ired.,  649. 

32.  Under  the  insolvent  debtor  act  of  1(S22,  the  discharge  of 
a  debtor,  arrested  on  a  ca.  sa.  at  the  instance  of  a  creditor,  oper- 
ated only  against  ^tliose  creditors  who  had  been  duly  notified, 
under  the  provisions  of  that  act.     Ihid. 

33.  Where  a  delator  is  arrested  under  different  ca.  sas.  at  the 
instance  of  several  creditors,  he  has  a  right  under  the  act,  Rev. 
Stat,  ch.  58,  sec.  20,  if  he  apply  for  his  discharge  as  an  insolvent 
debtor,  and  fraud  is  suggested  in  answer  to  his  application,  to 
requii-e  that  all  the  creditors  he  may  notify  shall  join  in  the  trial 
of  one  issue,  and  the  court  will  so  direct.  But  this  is  for  the  ease 
of  the  debtor,  and  he  may  waive  the  privilege  by  joining  issue 
with  each  creditor,  and  tlien  a  verdict  in  his  favor  in  one  case 
will  not  discharge  liim  from  his  liability  in  the  case  of  another 
creditor.     Ibid.     (See  Rev.  Code,  ch.  59,  sees.  11  and  16.) 

34.  Wh^re  a  debtor  has  been  arrested  on  a  ca.  sa.  and  given 
bond  for  his  appearance  at  court  under  the  act,  and  the 
sureties  surrender  him  and  he  is  ordered  into  custody,  the  com- 
mittitnr  is  in  execution,  and  the  sheriff  has  no  power  to  discharge 
the  debtor  out  of  prison,  of  his  own  will,  and  without  the  order 
of  the  court.  Wright  v.  Bohcrts,  6  Ired.,  119.  (See  Rev.  Code, 
ch.  59,  sec.  6,  from  which  it  appears  the  debtor  may  give  bond 
and  security,  when  committed  in  execution  by  the  court  after 
judgment.) 

35.  Where  an  insolvent  debtor,  in  filing  his  schedule,  only 
surrenders  his  interest  in  certain  property  conveyed  by  a  deed 
in  trust,  and  the  jury,  upon  an  issue,  find  the  deed  fraudulent, 
he  must  be  imprisoned  until  he  makes  a  surrender  of  the  whole 
property  so  conveyed.     HuttonY.  Self,  6  Ired.,  285. 

36.  After  a  debtor  arrested  upon  a  ca.  sa.  has  given  bond  with 
suretif'S,  to  take  the  benefit  of  the  insolvent  debtor's  act,  and  has 
joined  in  an  issue  tendered  by  the  plaintiff  upon  a  suggestion  of 
fraud,  it  is  too  late  for  him  or  his  sureties  to  bring  forward  an 
exception  to  the  ca.  sa.  under  which  he  Avas  arrested.  Freeman 
V.  Zi.s/.-,  8  Ired.,  211. 

37.  Where  a  debtor,  alleging  that  lie  is  insolvent,  appeal's  in 
court  under  an  arrest  and  bond  given^  he  can  only  be  discharged 


780  INSOLVENT  DEBTORS— II. 

by  taking  tlie  oath  prescribed  by  law,  or  by  the  act  or  consent 
of  the  creditor.     Ibid. 

38.  If*  an  issue  of  fraud  has  been  made,  tliere  cannot,  as  to 
that,  be  a  nonsuit.     I  hid, 

39.  In  a  proceeding  under  the  insolvent  law,  when  the  debtor 
has  been  arrested  under  a  ca.  sa.,  it  is  too  late  for  him,  after  giv- 
ing bond  and  joining  in  an  issue  of  fraud,,  to  take  exception  to 
tlie  writ  of  ca.  ,sa.     Nixon  v.  Nunnery,  9  Ired.,  28. 

^  40.  Although  a  ca.  sa.  may  be  void,  yet  the  court  has  jurisdic- 
tion of  the  subject  matter,  and  objections  to  any  part  of  the  pro- 
ceedings mu&t  be  made  in  apt  time.     Ibid 

41.  When  the  creditor  alleges  fraud,  if  his  specification  be  not 
sufficiently  certain,  and  a  defendant,  before  issue  joined,  objects 
to  it,  and  the  court  should  refuse  to  make  it  certain,  it  would  be 
error.  '  But  an  objection  to  the  specification  will  be  too  late  after 
issue  joined,  because  the  verdict  may  cure  the  defect.     Ibid. 

42.  It  is  not  necessar}^  that  the  land,  alleged  to  have  been 
fraudulently  conveyed  by  the  debtor,  should'be  over  the  value 
of  ten  dollars.  The  law  does  not  permit  the  debtor  to  -convey 
land  or  any  other  visible  property,  with  intent  to  defraud,  no 
matter  how  small  the  value,     Ibid.  ' 

43.  Where  a  defendant  has  been  arrested  upon  mesne  process 
and  given  bail,  and  after  judgment  the  bail  surrenders  him  to 
the  sheriff,  out  of  term  time,  no  execution  having  been  issued  on 
the  jiidgmcnt,  nor  any  commiititur  prayed  by  tlie  plaintiff,  if  the 
sheriff  cannot  take  a  bond  from  him  to  appear  at  court  and  take 
the  benefit  of  the  insolvent  law,  and  if  he  do  and  release  the  de- 
fendant, he  is  guilty  of  an  escape.     State  v.  Ellison,  9  Ired.,  261. 

44.  The  act,  liev.  Stat,  ch.  58,  sec.  7,  only  applied  to  cases 
where  the  debtor,  upon  a  surrender  of  his  bail,  is  ordered  into 
custody  by  the  court.  Ibid.  (Altered  so  as  to  embrace  a  case 
of  surrender  by  bail  out  of  court.     See  Rev.  Code,  ch.  59,  sec.  6.) 

45.  After  a  surrender  by  bail,  if  the  creditor,  upon  reasonable 
notice,  will  not  charge  the  party  in  execution,  either  a  habeas 
corpus  or  a  supersedeas  would  be  issued  by  tJie  court.     Ibid. 

46.  Although  the  bond  of  a  debtor,  arrested  upon  a  ca.  sa. 
within  twenty  days  of  the  term  of  a  court,  should  be  conditioned 
for  his  appearance  at  the  term  next  succeeding  to  that,  yet  the 
debtor  may  waive  this  privilege,  and  give  a  bond  for  his  appear- 
ance at  the  first  term,  and  this  bond  "shall  be  valid.  Hardison 
V.  Benjamin,  9  Ired.,  331. 

47.  A  bond  taken  for  the  defendant's  appearance  under  a  oa. 
sa.,  issued  by  a  justice  in  Buncombe  county,  ought  to  be  returned 
to  the  county  court  of  that  county,  notwithstanding  the  provis- 
ions of  the  act  of  1844,  abolishing  jury  trials  in  the  county  courts 
of  that  county.     Fox  v.  Wood,  11  ired.,  213. 

48.  In  the  case  of  a  proceeding  nnder  the  insolvent  debtor's 
law,  the  court  has  authority  to  permit  the  schedule  to  be  .amen- 


INSOLVENT  DEBTORS— n.  781 

ded,  so  as  to  make  more  certain  the  description  of  the  defendant's 
interest  in  matters  there  set  forth,  at  any  time  before  the  oath 
is  administered;  and  if  the  plaintiff  be  surprised  by  such  amend- 
ment, it  is  a  ground  for  a  continuance.  McLeod  v.  KiiMam,  11 
Ired.,  509. 

49.  It  is  sufficient  to  file  the  evidence,  of  the- debts,  set  out  in 
the  schedule,  which  are  in  the  possession  and  control  of  the  de- 
fendant, at  any  time  before  the  oath  is  administered.     Ibid. 

50.  It  being-  a  matter  of  public  notoriety,  that  proclamation 
money  is  wholly  worthless,  it  is  not  necessary  to  i-tate  in  the 
schedule  the  amount  thereof  with  nicety,  or  to  file  the  same. 
Ibid. 

51.  A  bond  given  by  a  person  arrested  on  aca.  so.,  for  his  ap- 
pearance at  C'^urt,  is  required  by  law  to  be  made  payablj  to  the 
plaintiff  in  the  execution ;  and  if  the  bond  be  made  payable 
otherwise,  the  court  cannot  enter  a  summary  judgment  upon  it. 
Williams'  v.  Bryan,  11  Ired.,  613, 

52.  Whtra  a  person,  arrested  on  a  co^sa.,  gave  a  bond  payable 
to  A  B,  who  made  the  affidavit  for  the  ca.^a.,  styling  himself  the 
agent  of  C.  D.,  the  plaintiff,  no  action  can  be  maintained  on 
such  bond  in  the  name  of  C.  D.,  because  he  is  not  the  obligee 
in  it.     Jhid. 

53.  AVhere  a  party,  wdio  has  been  arrested  under  a  ca.  sa.,  gives 
bond  for  his  appearance,  &c.,  he  may,  when  a  judgment  is  moved 
for  upon  an  alleged  breach  of  the  bond,  adduce  any  matter  whicli 
amounts  to  a  defence.     Rohinfion  v.  McDugald^  12  Ired.,  136. 

54.  A  defendant  was  arrested  under  a  ca.  sa.  and  gave  bond 
as  required  by  law,  th«  plaintiff  was  permitted  io  amend  his 
execution  and  the  defendant  allowed  to  appeal ;  in  the  superior 
court  the  plaintiff  moved  to  dismiss  the  appeal,,  on  the  ground 
that  the  appeal  was  improvidently  granted,  aiid  the  motion  was 
sustained  l;y  the  court  and  the  appeal  ordered  to  be  dismissed; 
and  it  ivas  held  that  the  plaintiff  was  not  then  entitled, 
in  the  superior  court,  to  a  judgment  for  his  debt  and  costs 
against  the  defendant  and  his  sureties  on  the  appeal  bond. 
(Jhunn  V.  Jones,  12  Ired.,  251. 

55.  The  writ  of  ca.  sa.,  as  well  as  the  affidavit  authorizing  it, 
must  correspond  with  the  judgment  upon  which  it  is  issued. 
Therefore,  where  a  judgment  was  obtained  against  A  and  B 
jointly,  and  a  ca.  sa.  issued  against  A  alone,  it  urns  held,  that  the 
j)roceedings  were  irregular,  and  the  defendant  was  entitled  to  be 
discharged.     Judson  v.  M'-ClcUand,  Busb.,  262. 

56.  Where  a  bond' Avas  returned  to  the  county  court,  for  the 
appearance  of  a  debtor,  under  the  act  for  the  relief  of  insolvent 
debtors,  with  A,  B  and  C  as  his  sureties,  and  such  person  and 
hirt  sureties  were  discharged  from  "all  liability  on  his  bond,"' 
and  the  defendant  in  the  execution  gave  a  new  bond  for  his 
further  appearance  at  court  with  A  and  D  as  his  sureties,  and. 


^§2  INSORVEN^r  DEBTOES^II. 

tlie  case  was  then  continued  for  three  terms,  when  a  jiiclgwient 
was  entered  against  A,  B  and  C,  the  sureties  on  the  first  bond, 
it  teas  held  that  the  judgment  was  improper  and  void.  CoJioon 
v..  Morris^  1  Jones,  218. 

57.  Upon  an  appeal  to  the  superior  court  from  the  judgment 
above  mentioned,  it  zvas  held  tliat  no  judgment  could  be  given  in 
that  court  upon  the  bond  of  A  and  D,  because  it  was  not  before 
the  court,  and  that  no  judgment  could  be  given  upon  either  bond 
against  A  alone.     Ihid. 

58.  Where  a  ecu  sa.  bond  was  taken,  payable  to  the  person  who 
had  the  erjuitable  interest  in  the  claim,  and  a  judgment  was 
taken  on  it,  m  default  of  the  obligor,  in  favor  of  the  legal  owner, 
it  icas  held  that  the  judgment  was  erroneous,  and  might  be  set 
aside  on  motion,  made  the  day  subsequent  to  that  on  which  the 
judgment  was  rendered.     Ernie  v.  Dobson,  1  Jones,  515. 

51).  Upon  an  issue  of  fraud,  under  the  insolvent  debtor's  act, 
where  a  debtor  had  conveyed  all  his  visible  property  in  trust, 
and  many  circumstances  tended  to  show  that  by  a  fraudulent 
collusion  with  tlie  trifstee  and  another,  a  large  amount  of  the 
property  of  the  debtor  had  been  transferred  by  the  trustee  to  the 
debtor's  son,  a  youth  of  eighteen  without  means,  it  loas  held  to 
be  error  in  the  judge,  after  assuming  that  the  deed  in  trust  and 
sale  to  the  son  might  be  fraudulent,  to  instruct  the  jury  that  they 
should  not  find  the  issue  against  the  debtor,  unless  they  believed 
that  the  property  was  purchased  for  him.  It  should  have  been 
submitted  whether  the  transfer  to  the  son  was  bona  fide  and  for 
value  paid  by  him.     Adaysv.  Sc<:/?)?a??,  3  Jones,  140. 

GO.  A  debtor,  under  the  4th  section  of  the  58th  chapter  of  the 
Eev.  Statutes,  is  entitled  to  insist  that  suggestions  of  fraud  made 
by  a  creditor  shall  be  verified  by  his  oath  and  tried  by  a  jury; 
aiid  a  judge  cannot  decide  upon  the  necessity  of  such  sugges- 
tions, and  the  making  up  an  issue  to  be  submitted  to  tlie  jury. 
Purvis  V.  Bohiiison,  4  Jones,  96.     (See  Rev.  Code,  ch.  59,  sec.  3  ) 

Gl.  No  judgment  can  be  taken  in  the  county  court  upon  a  ca. 
sa.  bond,  if  the  debtor  appear  when  called  at  the  court  to  which 
he  is  bound,  although  his  surety  does  not  surrender  him.  But 
if  a  judgment  be  erroneously  rendered,  and  he  appeals  to  the 
superior  court,  he  is  still  bound  to  appear  when  called  in  the  reg- 
ular course  of  that  court,  and  if  he  fail  to  do  so,  the  plaintiff  will 
be  entitled  to  judgment  against  him  and  the  sureties  to  his  ap- 
peal bond.     Blears  v  >Spei'jht,  4  Jones,  420. 

G2.  Upon  the  surrender  in  court  of  a  debtor  by  his  sureties,  it 
is  sufficient,  in  order  to  have  him  committed  mto  custody,  that 
the  afhdavit  filed  by  the  plaintiff  alleges,  "  that  the  defen- 
dant is  about  to  remove  from  the  State."  Farmers  Bank  of 
North  Carolina  v.  Freeland,  5  Jones,  326. 

Go.  In  the  twenty  days,  within  which  under  the  8th  sec,  59th 
ch.  of  the  Rev.  Code  relating  to  insolvent  debtors,  a  ca.  sa.  must 


INSOLTEXT  DEBTORS— II-III.  783 

be  executed,  Sundays  are  included.     Dralce  v.  Fletcher,  5  Jones, 
410. 

64.  Where,  to  a  schedule  filed  by  nn  insolvent  debtor,  a  cred- 
itor alleged  in  his  specifications  of  fraud,  that  two  notes  had  been 
fraudulently  transferred  to  secure  a  feigned  debt,  and  tlie  jury, 
upon  an  issue  submitted  to  them,  found  the  allegations  to  be 
true,  whereupon  the  debtor  filed  a  new  schedule,  admitting  that 
the  debt  secured  by  the  deed  in  trust  was  feigned,  but  to  acquit 
himself  of  the  fraud  made  other  allegations,  among  which  one 
w^as  that  the  trustee  had  run  away  with  the  funds,  and  he  sur- 
rendered his  claim  upon  the  trustee,  it  ivas  Jield  that,  though  the 
creditor  could  not  make  any  other  suggestions  of  fraud  upon  the 
first  schedule,  yet  he  had  a  right  to  do  so  as  to  matters  set 
out  in  the  second  schedule.     Farrar  v.  Bedwine,  6  Jones,  143. 

65.  When  a  defendant  gives  a  bond  for  his  appearance  at 
court,  and  while  he  is  at  large  by  virtue  thereof,  he  is  not  enti- 
tled to  be  discharged  on  account  of  the  fact  that  the  ca.  sa.,  un- 
der which  he  was  taken,  is  voidable;  nor  can  he  move,  while 
thus  at  large,  to  quash  the  proceedings  on  that  account.  Bryan 
V.  Brooks,  6  Jones,  580. 

()6.  If  an  insolvent  debtor  omit  to  include  in  his  schedule  prop- 
erty assigned  to  him  by  commissioners,  under  the  act.  Rev.  Code, 
ch.  45,  sees.  8  and  9,  he  cannot  be  convicted  of  n,  fraud  ale  nt  con- 
ceabiieni  of  it,  although  it  is  a  chose  in  action  which  could  not  be 
assigned  to  him  under  the  act.     Ballard  v.   Waller,  7  Jones,  84. 

See  (Judgment — Of  the  effect  of  a  judgjuent,  12.)  (Judgment 
• — Of  irregular,  void  and  erroneous  judgments,  39.)  (Prison 
Bounds.) 

ni.   OF  THE  PROPERTY  TO  BE  LAm  OFF  TO  AN  INSOLVENT  DEBTOR. 

1.  A  h.ouscholdcr,  wb.o  wishes  to  avail  himself  of  the  act  of 
1844,  may  do  so,  by  making  application  and  procuring  the  as- 
signment to  be  made  according  to  the  act,  at  any  time,  (even  af- 
ter a  levy  of  an  execution  or  attachment,)  before  the  property  is 
changed  or  converted  by  a  sale.  Slate  v.  Floyd,  11  Ired',  496. 
(See  Rev.  Code,  ch.  45,  sees.  8  and  9.) 

2.  Where,  under  the  act  of  1848,  three  freeholders  are  ap- 
pointed to  lay  off  the  property  of  an  insolvent  debtor  to  be  ex- 
empt from  execution,  they  have  authority,  under  the  words 
"other  property,"  to  set  apart,  for  the  use  of  the  debtoi,  a  mare 
and  five  lujgs,  provided  these  articles  do  not  exceed  fifty  dollars 
in  value.     Vmn  v.  Krng,  13  Ired.,  20. 

3.  The  act  of  1844  includes  under  the  terms  "  debts  contrac- 
ted" a  bond  given  after  the  1st  July,  1845,  though  the  conside- 
ration of  the  bond  had  existed  before  that  time.     Ibid. 

4.  Under  the  act  of  1848,  the  insolvent  debtor  has  a  right  to 
have  allotments  for  his  benefit  made  by  the  freeholders  from 


784  INSOLVENT  DEBTORS— III-IY. 

time  to  time,  as  his  necessities  may  require,  provided  the  allot- 
ments be  made  at  intervals  not  unreasonably  short.  Each  allot- 
ment must  be  complete  in  itself,  so  as  to  designate  all  the  arti- 
cles allowed.  Ibid.  (See  Eev.  Code,  ch.  45,  sees.  8  and  9,  also 
act  of  1856,  ch.  2.) 

5.  The  provision  allowed  insolvent  debtors  under  the  act  of 
1848,  ch.  32,  may  lawfully  be  laid  off  to  them  after  an  issue  of 
fraud  is  made  up,  and  while  it  is  still  pending  in  court.  Schonwald 
V.  Capps,  3  Jones,  342.     (See  Rev.   Code,  ch.  45,  sees.  8  and  9.)' 

6.  A  chose  in  action  cannot  be  included  by  commissioners  in 
their  allotment  of  an  insolvent  debtor's  provision,  under  the 
Revised  Code,  ch.  45,  sees.  S  and  9.     Ballard  v.  Waller^  7  Jones,  84. 

7.  If  an  article  of  property'"  laid  off  to  an  insolvent  house- 
keeper, under  the  Rev.  Code,  cb.  45,  sees.  8  and  9,  be  exchanged 
for  another  article,  the  latter  is  not  exempt  from  execution. 
Lloyd  V.  Durham,  1  Winst.,  288. 

8.  It  seems  tnat  the  debtor  might  have  procurred  the  article 
received  in  exchange  to  be  laid  off  to  him  by  a  second  allotment, 
and  then  it  would  have  been  exempt.     Ibid. 

See  (Insolvent  Debtors — Proceedings  under  the  act  1822  and 
subsequent  acts,  60.)     (Recordari,  14.) 

IV.     OF  THE  creditor's  liability  for  the  maintenance  of  his  deijtor 

IN  jail. 

1.  A  creditor  is  not  liable  for  the  maintenance  of  his  debtor  in 
jail,  unless  he  discharges  the  debtor,  who  is  unable  to  pay  for 
such  maintenance.  Turrentine  v.  Murphy,  1  Murph  ,  180.  (See 
Rev.  Code,  ch.  59,  sec.  5.) 

2.  Where  a  man  has  been  arrested  under  a  ca.  sa.,  and  has 
given  bond  for  his  appearance  at  court,  where  an  issue  of  I'raud 
has  been  made  up,  and  the  issue  continued  from  term  to  term ; 
where  his  sureties  have  from;  time  to  time  surrendered  him ; 
where  the  issue  has  been  decided  against  him,  and  he  has  been 
committed  to  prison  at  the  instance  of  the  creditor;  it  loas  held 
that  under  the  act.  Rev.  Stat.,  ch,  58,  sec.  6,  the  creditor  was  re- 
sponsible to  the  jailor  for  his  fees,  or  alio  vance  for  the  food  fur- 
nished the  prisoner,  during  the  whole  time  he  was  confined  in 
jail.  Veal  V.  Flake,  10  Ired.,  417.  (See  Rev.  Code,  ch.  59, 
sec.  5.) 

3.  When  a  debtor  is  committed  to  prison,  and  is  permitted  to 
take  the  prison  bounds,  the  jailer  is  under  no  obligation  to  fur- 
nish him  with  provisions  for  a  support,  and,  of  course,  the  cred- 
itor cannot  be  compelled  to  re-iml')urse  the  jailor  for  any  provis- 
ions which  he  mavhaveso  furnished.  Phillips  v.  Allen,  13  Ired., 
10. 

4.  Where  a  debtor,  who  is  imprisoned  at  the  instance  of  his 
creditor,  has  no  property  in  the   State,  out  of  which   the  prison 


INSOLVENT  DEBTORS— IV-V— INSPECTORS,  ETC.  785 

fees  and  the  charge  for  his  support  can  be  satisfied,  notwith- 
standing he  may  have  sufficient  in  anotlier  state,  the  jailor  has 
a  right  to  recover  the  amount  from  the  creditor,  under  the  Rev. 
Stat,  ch.  58,  sec.  6,  making  him  responsible  "if  the  prisoner  be 
unable  to  discharge  them."  Faucet  v.  Adams,  13  Ired.,  235.  (See 
Rev.  Code,  ch.  59,  sec.  5.) 

V.       THE    CLAIM    OF    THE    UNITED    STATES    AND    THE    STATE. 

T.  The  act  of  Congress  of  March,  1797,  gives  to  the  United 
States  a  piiority;  1st,  where  the  debtor  has  become  insolvent; 
2nd,  where  the  estate  of  a  deceased  debtor,  in  the  hands  of  his 
executor  or  at hninistrator,  is  insufficient  to  pay  all  his  debts;  3rd, 
where  the  debtor,  not  having  sufficient  property  to  pay  all  his 
debts,  makes  a  voluntary  assignment  thereof;  4th,  where  the 
estate  or  effects  of  an  absconding,  concealed  or  absent  debtor, 
shall  be  attached  by  process  of  law.  Young  v.  Tate,  3  Murph., 
498. 

2.  The  act  of  July,  1798,  makes  the  amount  of  debts  due  the 
United  States  a  lien  upon  the  real  estate  of  the  collector  from 
the  time  suit  shall  be  instituted  for  recovering  the  same;  and 
provides  that  for  want  of  goods  and  chattels  the  land  shall  be 
sold.  This  lien  is  qualitied  and  conditional,  and  subjects  the 
land  to  be  sold  onlv  where  the  debtor  has  no  personal  estate 
Ibid. 


INSPECTORS  OF  ELECTIONS. 

1.  Inspectors  of  elections  are,  under  the  act  of  assembly,  the 
exclusive  judges  of  the  qualifications  of  voters,  and  where  no 
corruption  is  charged  and  found  against'  them,  they  are  not 
responsible  in  damages  to  a  voter,,  whose  vote  is  excluded  on 
accountof  a  mere  error  in  judgment.  Feavev.  Fobhins,  d  Jones, 
339.     (See  Rev.  Code,  ch.  52,.  sec.  10.) 


TNSURANCE. 

1.  A  provision  in  a  policy  of  life  insurance,  excepting  from 
liability  the  cases  of  death  "by  means  of  invasion,  insurrection, 
riot  or  civil  commotion,  or  of  any  military  or  usurped  authority, 


78G  INSURANCE. 

or  by  the  hands  of  justice,"  does  not  embrace  the  case  of  a  slave 
insured,  who  is  killed  in  an  armed  and  violent  resistance  to  the 
authority  of  the  patrol.  Spi^uill  v.  North  Carolina  Mutual  Life 
Insurance  Company,  1  Jones,  126. 

2.  Where  specific  descriptions  of  the  property  insured  are  re- 
quired by  the  terms  of  a  fire  insurance  office,  which  are  referred 

0  and  iiicorporated  as  part  of  the  conditions  of  the  policy  of 
insurance,  the  suppressi(m  of  an  immaterial  fact  will  not  inval- 
idate the  policy.  Whitehurst  v.  Fayettecille  llutual  Insurance 
Company,  6  Jones,  352, 

3.  The  failure  of  the  person  insured  to  repair  a  defect  in  the 
property,  occurring  after  the  contract  was  made,  unless  he  be 
guilty  of  gross  neglect,  does  not  prevent  the  insured  from  re- 
covering on  the  policy.     Ibid. 

4.  Losses  arising  from  bona  fide  efforts  to  extinguish  fire,  such 
as  the  wetting  and  soiling  of  goods,  and  losses  by  theft  consequent 
on  their  removal,  are  fairly  within  the  contract  to  insure  against 
fire.     Ibid. 

5.  Where,  by  a  policy,  the  life  of  a  slave  was  insured  for  five 
years  absolutely,  without  requiring  the  payment  of  the  annual 
installment,  as  a  condition  of  the  defendant's  liability,  it  laas 
held  that  the  insurance  money  for  a  loss  was  not  forfeited  by  a 
failure  to  pay  such  instsl'ment.  Woodfin  v.  Asheville  Mutual  In- 
surance Company,  6  Jones,  558. 

6.  Where  a  paty  became  a  member  of  a  mutual  insurance 
company  by  talcing  out  a  policy,  if  was  held,  that  he  thereby  as- 
sented to,  and  became  bound  by,  the  by-laws  then  in  force;  and. 
as  one  of  these  required  that  a  particular  account  on  oath  of  the 
circumstances  of  a  loss  should  be  given  forthwith  to  the  com- 
pany, it  u'as  held  further  that  no  action  could  be  sustained  for 
such  loss,  without  furnishing-  such  account  within  a  reasonable 
time,  although  this  provision  was  not  embodied  in  the  policy. 
Ibid.  S.  P.,  Boyle  V.  North  Carolina  3Iutucd  Insurance  Company, 
7  Jones,  373. 

7.  Where  one  of  the  by-laws  of  a  mutual  insurance  company 
required  that  the  insured,  within  thirty  days  after  a  loss  b}^  fire, 
should  give  notice  to  the  company,  specifying  the  amount  of 
loss,  the  manner  of  it,  and  other  particulars,  as  a  condition  to 
his  right  to  recover;  it  urns  held  that  a  declaration  to  the  insured 
made  by  a  travelling  agent  of  the  company,  that  "the  matter 
would  be  all  rig]it  with  the  company,"  was  not  a  waiver  of  the 
necessity  for  such  notice.  Boyle  v.  North  Carolina  Mutual  In- 
surance Cojnpany,  7  Jones,  373. 

8.  A  requisition  in  a  policy  of  insurance,  that  the  person  in- 
sured should  "  forthwith  "  give  notice  of  a  loss,  to  the  company, 
is  not  complied  with  by  giving  notice  at  the  expiration  of 
twenty  days.  Whitehurst  v.  North  Carolina  Mutual  Insurance 
Ccnnpany,  7  Jones,  433. 


INTEREST.  787 


INTEREST. 

1.  In  an  action  for  goods  sold  and  delivered,  interest  should 
^36  allowed  according  to  the  custom  of  the  state  where  the  sale 
was  made.     Kaighn  v.  Kennedy,  Mar.,  37,  (26.) 

2.  Whenever  one  person  has  the  money  of  another,  and 
knows  Avhat  sum  he  ought  to  pay,  he  must  pay  interest  for  the 
same.  State  w  Blount,  1  Hay.,  4,  (7.)  S.  P.,  Hunt  v.  Jucks,  J  bid, 
173,  (199.) 

3.  Interest  must  be  calculated  by  the  following  rule :  it  must 
be  estimated  upon  the  principal  from  the  time  it  commenced  to 
the  day  of  the  first  payment ;  if  the  payment  were  equal,  and  no 
more  than  equal,  to  the  interest  then  due,  it  must  extinguish  the 
interest;  if  it  exceeded  the  interest,  the  balance,  after  extin- 
guishing the  interest,  must  be  deducted  from  the  principal ;  if 
the  payment  were  less  than  the  interest,  then  the  balance  of  in- 
terest must  remain  until  the  next  payment;  interest  must  then 
be  calculated  upon  the  principal  remaining,  to  the  time  of  the 
next  payment,  which  next  payment  must  be  applied  in  the  first 
place  to  the  whole  of  the  interest  then  due;  and  so  toties  quo- 
ties.  Bunn  v.  Moore,  1  Hay.,  279,  (323.)  S.  P.,  Anomjmom,  2 
Hay.,  17,  (1(J9.)  Ahrth  v.  JlLdletf,  Ibid,  151,  (329.) 

4.  Interest  must  be  calculated  according  to  the  law  of  the 
place  where  the  contract  was  made.  Anonymow.,  2  Hay.,  5,  (149.) 

5.  The  plaintiff  is  entitled  to  interest  upon  his  judgment  if  he 
institute  a  new  action  upon  it;  but  not  if  he  revive  it  by  a  sd. 

fa.     Anonymous,  2  Hay.,  26,  (182.)     (Interest  is  now  given  by 
Kev.  Code,  ch.  31,  sec.  90.) 

6  A  promissory  note  to  pay  at  the  end  of  seven  years  from 
date,  without  interest,  will  bear  interest  after  seven  years. 
McKinhy  v.  BlacUedge,  2  Hay.,  28,  (185.) 

7.  Where  a  note  is  payable  on  demand,  interest  does  not 
accrue  until  a  demand  is  made;  when  no  time  is  appointed,  the 
money  is  payable  immediately,  without  a  demand,  and  interest 
accrues  immediately.  Leivis  y.  Lewis,  2  Hay.,  32,  (191,)  S.  P. 
Freelandv.  Edicarcls,  Ibid,  49,  (207.) 

8.  British  creditors  were  not  entitled  to  interest  on  their  debts 
after  the  Revolution  until  a  demand  after  the  treaty  of  peace. 
Anonymous,  2  Hay.,  lU3,  (263.) 

9.  When  notes  are  received  by  a  creditor,  as  a  payment,  the 
debtor  should  be  credited  for  them  at  the  time  of  the  receipt,  to  be 
applied  in  the  first  place  to  the  interest  and  then  to  the  principal 
as  other  payments;  otherwise  when  the  creditor  makes  them 
his  own  only  by  delay.     North  v.  Mallett,  2  Hay.,  151,  (329.) 

10.  If  it  be  the  rule  of  a  merchant  to  charge  interest  on  goods 
sold  from  three  months  after  the  sale,  interest  should  be  given  ac- 
cordingly.     Williams  Y.  Ferebee,  2  Hay.,  392,  (589.) 


788  INTEREST 

11.  Interest  will  continue  to  accrue  on  a  debt,  if  the  creditor 
were  in  the  country  when  it  became  due,  ahhough  he  be  after- 
wards absent  without  heaving  an  agent.  CorncU  v.  King,  Conf 
Rep.,  446,  (505.) 

12.  A  debtor,  who  is  ready  to  pay  his  debt  when  it  becomes  due, 
is  excused  from  paying  interest  thereon,  if  the  creditor  conceal  his 
place  of  residence,  and  the  debtor  know  not  where  to  apply  to  make 
payment.     Child  v.  Devereiix,  1  Murph.,  398. 

13.  It  was  the  design  of  the  act  of  1807,  to  allow  a  plaintiff 
interest  on  the  principal  sum  recovered,  from  the  rendition  of  the 
judgment;  and  where  the  whole  sum  is  assessed  in  damages,  the 
jury  must  distinguish  between  principal  and  interest;  but  where 
the  principal  and  intei-est  are  discriminated  on  the  record,  or  it 
can  be  collected  from  the  record  what  the  principal  is,  interest 
shall  be  calculated  on  that.     DeJoach  v.  WorJce,  3  Hawks,,  36. 

14.  A  note  payable  one  day  after  date,  with  an  endorsement 
thereon  that  it  was  not  to  be  paid  until  the  death  of  the  maker, 
])ears  interest  from  the  time  it  became  due,  without  reference  to 
the  endorsement.     PowtU  v.  Gmj..  3  Dev.  and  Bat.,  70. 

15.  When  claims  are  put  into  the  hands  of  an  officer  for  col- 
lection, and  he  refuses  or  neglects  to  account  for  them,  he  is 
justly  chargeable,  not  only  for  tbe  principal  sums,  but  also  with 
interest  from  the  time  the  claims  began  to  bear  interest.  State 
V.  Allert,  5  Ired.,  36. 

16.  The  rule,  as  to  interest  payable  on  debts,  is  regulated  by 
the  law  of  the  country  in  which  the  contract  is  made,  the  law 
presuming  that  the  contract  is  to  be  executed  there,  unless  the 
])arties  sti})ulate  otherwise;  and  this  stipulation,  to  take  the  case 
out  of  the  general  rule,  must  appear  on  the  face  of  the  contract. 
Arrmgton  v.  Gee,  5  Ired.,  5U0. 

17.  A  bond,  taken  simply  to  secure  the  performance  of  a  con- 
tract, wherever  it  may  be  executed,  must  bear  the  same  interest 
as  the  original  contract,  unless  it  be  otherwise  expressed  on  the 
face  of  the  bond.  Hence,  where  A,  a  citizen  of  North-Carolina, 
took  a  number  of  slaves  to  Alabama,  and  there  sold  them  to  B, 
a  citizen  of  Alabama,  who  was  to  give  him  a  bond  with  secur- 
ity for  the  price  of  the  slaves,  and  this  bond  was  executed  by 
K^  in  Alabama,  where  it  bore  date,  and  was  afterwards  brought 
to  this  state,  where  it  was  executed  by  two  sureties,  citizens  of 
tills  state,  the  bond  not  expressing  any  place  of  payment,  //  was 
held  that  the  sui'eties,  as  well  as  the  principal,"  were  bound  for 
the  pnvment  of  interest  according  to  the  laws  of  Alabama.  Ihid. 

is.  Where  the  contract  for  the  loan  of  money  is  made  in  Geor- 
^'•ia,  it  will  bear  Georgia  interest,  though  the  note  taken  for  the 
amount  lent  be  made  in  this  state.    Davis  v.  Coleuiav,  7  Ired.,  424. 

19.  An  execution  cannot  require  the  collection  of  interest,  when 
the  judgment  upon  which  it  is  issued  does  not  give  it.  Gollais 
V.  McLeod,  8  Ired.,  221. 


IKTEEEST— JOINT   OBLIGATIONS.  789 

20.  When  A,  a  citizen  of  Georgia,  being  in  this  State,  offered 
to  lend  B  $G,000,  but  on  his  return  to  Georgia,  not  having  sold 
his  cotton  crop,  wrote  to  B  that  he  coukl  only  lend  $3,000, 
whereupon  B  went  to  Georgia,  there  received  the  money  and 
executed  his  note  for  the  amount,  it  was  held  that  B  was  bound 
to  pay  eiglit  per  cent,  the  interest  according  to  the  laws  of 
Georgia.     Davis  v,  Coleman,  11  Ired.,  303. 

21.  A  party,  who  sues  for  stipulated  damages,  is  not  entitled 
to  interest,  even  from  the  date  of  his  writ.  Devereiix  v.  Bur- 
giuym  11  Ired.,  490. 

22.  In  England,  the  rule  is  that  interest  is  to  be  allowed, 
where  there  has  been  an  express  promise  to  pay  mterest,  or 
where  such  promise  is  to  be  implied  from  the  usage  of  trade,  or 
other  circumstances;  but  for  goods  sold,  money  lent,  money 
paid,  work  and  labor  done,  or  on  a  guarantee,  interest  is  not 
allowed,  unless  there  be  an  express  or  implied  agreement.  Our 
decisions  liaA^e  extended  the  rule,  and  for  money  lent,  or  money 
paid,  or  had  and  received,  or  due  on  an  account  stated,  the  jury 
ought  to  be  instructed  to  allow  interest,  the  promise  to  pay  being 
implied  from  ih^  iiature  of  the  transaction.  And  in  trover  and 
trespass  de  bonis  asportaiis  the  jury  may,  in  their  discretion, 
allow  interest  upon  the  value,  from  the  time  of  the  conversion  or 
seizure,  as  a  part  of  the  damages,  so  as  to  compel  the  wrongdoer 
to  make  full  compensation,  by  charging  him  with  the  price  as  at 
a  cash.  sale.     Ibid. 

23.  Where  there  is  a  penal  bond  lor  the  payment  of  money, 
mterest  may  be  recovered  upon  the  sum  really  due,  up  to  the 
time  of  payment,  even  after  judgment.  But  if  the  condition  be 
for  the  performance  of  some  collateral  act,  as  to  execute  a  mort- 
gage or  deed  of  trust,  as  additional  security  for  payment  of 
money,  interest  cannot  be  recovered  on  a  sci.  fa.  upon  the  dam- 
ages assessed.     Trice  v  Turrenfine,  13  Ired.,  212. 

24.  Interest,  being  an  incident  to  a  bond  for  the  payment  of 
money,  cannot  be  recovered  in  a  separate  action  for  it  alone,  af- 
ter the  principal  of  the  bond  has  been  paid.  3Ioore  v.  Fuller,  2 
Jones,  205. 

25.  Where  a  person  has  money  in  his  hands  as  agent,  and 
when  it  is  demanded  of  iiim  denies  liis  obligation  to  pay,  he  is 
responsible  for  interest  from  that  time,  but  not  for  any  previous 
time.     Hyman  v.  Gray,  4  J(mes,  155. 

See  (Heirs,  7.)  (Judgment — Of  irregular,  void  and  erroneous 
judgments,  27.)  {Lex.  loci,  10-18.)  (Sheriff^ — Liability  for  es- 
capes, 20.) 


JOINT    OBLIGAXrONS. 

1.  A  firm  in  Maryland  gave  its  promissory  note  to  A,  signed 
in  .the  name  of  the  firm,  and  A  sued  one  of  the  partners  alone, 


790  JOINT  OBLIGATIONS-JOINT  TENANTS. 

relying  on  the  act  of  1789,  (Rev.  Code,  ch.  31,  sec.  84,.)  and!  it 
was  held  that  he  might  sustain  the  action,  as  that  act  did'  not 
affect  the  contract,  but  only  extended  the  remedy.  Palyart  v. 
Gouldlng,  2  Mar.,  78,  (133.) 

2.  Under  the  act  of  1789  (Rev.  Code,  ch.  31,  sec.  84,)  the  ac- 
tion ma}^  be  brought  against  both  the  survivor  and  the  adminis- 
trator of  a  deceased  joint  obligor.  Brown  v.  Clary ^  1  Hay.,  107, 
(125.)     S.  P.,  Davis  v.  Wilkinson,  Ibid,  334,  (383.) 

3.  Whether,  if  two  be  sued  on  a  joint  bond  and  the  suit  be- 
abated  as  to  one,  judgment  may  be';  rendered  against  the  other,^ 
qumre.     Anony7nous,  1  Hay.,  4^7,  (561.) 

4.  The  word  "  debts"  in  the  act  of  1789,  relating  to  joint  obli- 
gations, includes  judgments;  therefore,  the  remedy  upon  a  judg- 
ment against  several  will  survive  against  the  personal  represen- 
tatives of  each.     Smith  v.  Fagan,  2  Dev.,  298. 

5.  An  action  may  be  sustained,  under  the  act  of  assembly, 
against  any  one  or  more  of  the  joint  obligors  in  a  covenant  of 
warranty,  contained  in  a  deed  for  the  conveyance  of  land,  for 
breach  of  such  covenant,  the  act  not  being  confined  to  the  pay- 
ment of  money  merely.      Grier  v.  Fletcher,  1  Ired.,  417. 

6.  All  contracts  are  several,  although  made  by  partners.  NeU' 
v.  Childs,  10  Ired.,  195. 


JOIN'r  TENANTS. 

1.  A  widow  and  her  two  children  were  joint  tenants  of  a  slave. 
By  the  marriage  of  the  widow  her  joint  tenancy  was  severed, 
as  was  that  between  the  children,  by  the  act  of  1784.  (See  Rev. 
Code,  ch.  43,  sec.  2.)  And  in  a  suit  in  trover  by  one  of  the 
children  he  was  allowed  to  recover  only  one-third  part  of  the 
value.  Witherington  v.  fVilliams,  Tay.,  134,  (83,)  S.  C.  2  Hay., 
64,  (232.) 

2.  Joint  owners  of  a  chattel  have  equal  right  to  the  possession 
of  it;  and,  therefore,  the  exclusive  possession  of  the  chattel  by 
one  will  not  entitle  the  other  to  maintain  trover  against  him  for 
it.      Cole  V.  Terry,  2  Dev.  and  Bat,  252. 

3.  Where  tliere  are  two  part  owners  of  a  chattel,  and  one  of 
them,  without  the  assent  of  the  other,  destroys  the  chattel  or 
renders  it  useless  by  use,  the  former  is  liable  to  the  latter  in  trover 
for  the  value  of  his  share ;  and  in  such  case  no  demand  is  neces- 
sary before  bringing  the  action,  Guyiher  v.  Fettijohn,  6 
Ired.,  388. 

4.  Where  a  joint  owner  of  personal  chattels,  who  is  author- 
ized to  sell  them,  warrants  the  soundness,  as  he  ha.s  a  right  to 


JOINT  TENANTS-JUDGE'S  CHAEGE-JUDGMENT-I.  791 

do,  and  tliey  turn  out  to  be  defective,  and  the  seller  pays  for  the 
defeict  without  suit,  he  may  sue  another  joint  owner  for  contri- 
bution according-  to  his  interest.  Davis  v.  Burnett^  4  Jones,  71. 
5.  If  one  joint  owner  of  a  crop  sells  to  the  other  his  share  of 
it,  to  pay  a  debt  he  ow^ed  him,  and  it  is  divided  in  the  presence 
of  both,  for  the  purpose  of  ascertaining  the  amount  to  be  cred- 
ited on  the  debt,  the  title  passes  to  the  purchaser,  whether  the 
agreement  for  the  sale  Avas  made  before  or  after  the  division  of 
the  crop.      Warhritton  v.  Sacage,  4  Jones,  382. 


JUDGE'S  CHARGE. 

See  (Practice — Judge's  Charge.) 


JUDGMENT. 


I.  Of  the  effect  of  a  judgment. 
II.  How  a  judgment  is  proved,  and  of 

a  scire  facias  to  revive  it. 
HI.  Of  the  assignment  of  judgments. 


IV.  Of  the  satisfaction  of  judgments. 
V.  Of  judgments  against  executors,  ad- 
ministrators and  heirs. 
VI.  Of   irregular,    void   and    erroneous 
judgments. 


I.       OF  THE  EFFECT  OF  A  JUDGMENT. 

1.  A  judgment  by  default  upon  a  bond  payable  in  tobacco  is 
not  a  final  judgment.     Bell  v.  Bill,  1  Hay., "72,  (85.) 

2.  A  judgment  binds  lands  from  the  time  it  is  pronounced,  but 
it  is  in  this  wise  only;  it  hinders  the  debtor  from  disposing  of 
the  land  himself;  but  if  a  Ji.  fa.  issues  upon  a  subsequent  judg- 
ment and  comes  to  the  hands  of  the  sheriff,  the  title  of  the  ven- 
dee under  such  execution  is  good.     Hid. 

3.  As  between  creditor  and  creditor,  it  is  not  the  first  judg- 
ment, but  the  first  execution  that  gives  the  preference.     Ibid. 

4.  Every  judgment  in  a  court  of  competent  jurisdiction  is  to 
be  presumed  fair,  until  the  contrary  is  proved,  and  the  evidence 
to  impeach  it  must  be  strong  and  convincing.  Welhei^  v.  Sylva, 
2  Hay.,  135,  (303.) 

5.  It  is  only  where  the  question  between  the  parties  has  once 
deen  decided  upon  confession  or  verdict,  that  the  judgment  can 


792  JUDGMENT— I. 

be  pleaded  in  bar  of  another  action.     Benton  v.  DuffeiL  Con.  Kep., 
98;(229.)  _  i/J  ^i' 

6.  A  person  is  not  bound  by  a  judgment  to  which  he  is  nei- 
ther party  nor  privy.  Williamson  v.  Smart,  Conf.  Rep.,  146, 
(268.) 

7.  A  judgment  obtained  in  one  state  is  not  conclusive  between 
the  parties  when  sued  upon  in  another.  Peck  v.  JViUiamson,  1 
Car.  L.  E.,  53,  (9.)     Qucere  I 

8.  An  order  of  the  county  court  for  the  sale  of  land,  after  a 
constable's  levy  on  it  accompanied  with  a  return  of  no  chattels, 
is  not  a  judgment,  though  it  may  have  the  quality  of  one  in  at- 
taching a  lien  upon  the  land.  Boivenr.  Lanier,  N.  C.  Term,  Ft., 
241,  (673.)  (The  plaintiff  in  such  a  case  may  now  have  a  judg- 
ment entered  in  court.     See  Rev.  Code,  ch.  45,  sec.  8  and  9.) 

9.  A  judgment  creates  no  lien  upon  land  when  a  fi.  fa.  is  sued 
out.  It  is  so  upon  a  moiety  of  the  land  of  Mdiich  the  debtor  was 
seized  at  the  time  of  its  rendition,  if  the  creditor  sue  out  an  ele^ 
git ;  but  if  he  elect  to  sue  out  a  fi.  fa.,  the  lands  are  bound  oidy 
as  chattels.  Jo)ies  v.  Edmunds,  3  IMurpli  ,  43.  (The  stat.  of 
West.  2nd,  which  gave  the  writ  of  elegit,  was  re-enacted|in  the 
Rev.  Stat.,  ch.  45,  sec.  3,  but  is  omitted  in  the  Rev.  Code.  See 
ch.  45.) 

10.  After  a  judgment  in  favor  of  A,  but  before  he  sued  out  ex- 
ecution (or  the  teste  of  the  execution)  the  debtor  conveyed  his 
lands  in  trust  to  secure  a  debt  which  he  owed  to  B,  it  was  held 
that  the  debt  to  B  must  be  satisfied  before  the  execution.     Ihid. 

11.  A  state  court  cannot,  upon  a  record  of  the  circuit  court  of 
the  United  States  offered  in  evidence,  inquire  into  the  fact,  wheth 
er  the  judgment  of  the  circuit  couit  was  regularly  entered  up,  or 
whether  tlie  subsequent  proceedings  thereon  were  regular.  Pigot 
V.  Davis,  3  Hawks,  25. 

12.  The  judgment  of  discharge  of  a  court  of  exclusive  juris- 
diction, on  the  petition  of  an  insolvent,  until  reversed  for  error  or 
quashed,  is  conclusive  evidence  of  the  discharge,  and  its  regu- 
larity cannot  be  questioned  incidentally.  Jordan  v.  James,  3 
Hawks,  110. 

13.  After  a  judgment  by  default  has  been  set  aside,  another 
court  cannot  enquire  collaterally,  whether  it  was  set  aside  prop- 
erly or  not.     Bender  v.  Askew,  3  Dev.,  149. 

14  In  this  state,  when  no  judgment  is  formally  entered  on  a 
verdict,  which,  connected  with  the  pleadings,  authorizes  a  judg- 
ment, the  court  is  bound  to  intend  such  a  judgment  as  ought  to 
have  been  rendered.     Barnard  v.  Etlieridge,  4  Dev.  295. 

15.  Judgments  of  a  court  of  record,  on  whatever  day  of  the 
term  they  may  be  rendered  in  law,  relate  to,  and  are  considered 
judgments  of,  the  first  day  of  the  term ;  and  this  rule  applies, 
although  the  judgments  were  confessed  upon  writs  which  were 
noted  by  the  clerk  to  have  been  issued,  and  the  service  of  which 


JUDGMENT— I.  793 

"was  acknowledged,  on  a  day  subsequent  to  the  first  day  of  the 
term ;  and  executions  issued  upon  such  last  mentioned  judg- 
ments will  have  priority  over  a  deed  in  trust,  proved  and  regis- 
tered on  the  second  dav  of  the  same  term.  Marleyv.  Lea,  4I)ev. 
and  Bat.,  1()9. 

16.  A  judgment  by  confession  is  valid  without  any  previous 
process.     Ibid. 

17.  Where  a  testator  died  in  term  time,  before  a  judgment  was 
signed,  it  teas  held  that  it  might  be  signed  after,  and  execution 
taken  out  against  his  goods  in  the  hands  of  his  executor,  tested 
the  first  day  of  the  term,  for  they  relate  to,  and  are  considered 
as  a  judgment  and  execution  of,  the  first  day  of  the  term,  at 
which  day  the  testator  was  alive.     Ibid. 

18.  A  person  may  confess  a  judgment,  or  recognizance  on 
record,  to  the  State  for  a  sum  of  money,  as  well  as  to  an  individ- 
ual. Therefore,  where  A  was  convicted  on  an  indictment  and 
fined,  and  ordered  into  the  custody  of  the  sheriff,  and  B,  in  con- 
sideration that  A  should  be  discharged  from  custody,  confessed 
a  judgment  to  the  State  for  the  fine  and  costs,  it  loas  held  that 
the  judgment  could  not  afterwards  be  set  aside.  State  v.  Lane, 
1  Ired.,' 2(U. 

19.  An  entry  in  a  suit,  "  dismissed  at  the  costs  of  the  de- 
fendant," is  not  to  be  construed  as  -a  retraxit,  or  a  judgment  upon 
the  merits,  so  as  to  bar  another  action  for  the  same  cause.  It  is 
simply  a  judgment  of  discontinuance,  where  the  court  erred  in 
ordering  the  defendant  to  pay  the  costs,  or  where  such  order 
was  made  by  the  consent  of  the  parties.  Bond  v.  McNider,  3 
Ired.,  440. 

20.  No  judgment,  but  one  on  a  retraxit  or  on  the  merits,  will 
bar  a  subsequent  action.     Lhid. 

21.  Akhough  a  warrant  may  have  been  filled  up  by  a  con- 
stable alter  the  magistrate  signed  it,  and  this  may  be  improper, 
yet  tlie  judgment  regularly  rendered  thereon  cannot,  if  at  all, 
be  collaterally  impeached,  as  being  void,  f(U"  such  defect  in  the 
leading  process.     Hafner  v.  Irwin,  4  Ired.,  529. 

22.  A  judgment  of  dismission  is  a  proceeding  unknown  in 
courts  of  common  law  jurisdiction.     Morgan  v.  Allen,  5  Ired.,  156. 

23.  A  judgment  or  decree  pronounced  in  any  state,  against  an 
inhaljitant  of  another  state,  upon  whom  process  in  the  suit  has 
not  been  served,  is  only  binding  in  the'  state  in  which  such 
judgment  or  decree  has  been  rendered.  Davidson  v.  Sharpe,  6 
Ired.,  14. 

24.  Where  an  award  has  been  made  by  referees  under  a  rule 
of  court,  and  confirmed  by  the  court,  it  is  binding  on  all  parties, 
and  while  it  remains  unreversed  the  judgment  cannot  be  con- 
tradicted.    Anders  v.  Anders,  9  Ired.,  214. 

25.  Where  a  judgment  is  confessed  upon  terms  which  are 
duly  entered,  it  is  in  efiect  a  conditional  judgment,  and  the 


794  JUDGMENT— I-II-III, 

court  will  take  notice  of  the  term-B  and  enforce  tliem.      Wood  v. 
BagleT/^,  12  Ired.,  83. 

26.  The  entry  of  "compromised"  in  a  suit,  does  not,  ex  vi 
iermini,  import  that  it  was  settled  and  decided,  and  a  judgment 
given  oji  its  merits,  but  it  is  open  to  extrinsic  proof  as  to  what 
was  the  full  agreement  of  the  parties  in  relation  thereto.  Idding 
V.  Hiatf,  (3  Jones,  402. 

27.  A  judgment  in  favor  of  "Lash  &  Moore/'  trading  as  a 
firm,  is  valid,  and  is  admissible  in  evidence  in  a  suit  brought  on 
it  by  the  members  of  the  firm  in  their  individual  names  set  out 
in  full,  and  adding  that  they  were  trading  under  the  name  and 
style  of  "Lash  &  Moore."     Las  i  v.  Arnold,  8  Jones,  206. 

See  (Literest,  13.)     (Joint  Obligations,  4.) 

II.       HOW  A  JUDGMENT  IS  PROVED,  AND  A  SCI.   FA.   TO  REVIVE  ONE. 

1.  The  only  legal  proof  of  a  judgment,  is  by  the  production 
of  the  formal  entry  of  it,  but  minutes  made  during  the  progress 
of  a  cause,  if  received  without  objection  to  their  form,  are  suffi- 
cient proof  of  the  judgment,  if  from  them  a  formal  entry  can  be 
made  up.      Gibson  v.  Parfee,  2  Dev.  and  Bat.,  530. 

2.  Matter,  wliich  might  have  been  well  pleaded  to  the  original 
action,  cannot  be  heard  as  a  defence  to  a  sci.  fa.  brought  to 
revive  the  judgment  rendered  in  that  action.  Ferebee  v.  Doxey, 
6  Ired.,  448. 

3.  To  support  the  declaraticm  in  an  action  of  debt  on  a  judg- 
ment, the  exemplification  of  the  judgment  itself  must  be  pro- 
duced, it  is  not  sufficient  to  show  a  sa. /a.  to  show  cause  why 
execution  on  the  judment  should  not  issue,  and  an  award  of  exe- 
cution according  to  the  sci.  fa.     Fitch  v.  Porter,  8  Ired.,  511. 

4.  Where  there  is  a  dormant  judgment,  the  plaintiff  may  have 
a  sci.  fa.  to  revive,  and  an  action  of  debt  to  recover  the  amount 
of  the  judgment,  both  pending  at  the  same  time,  and  a  judgment 
on  the  sci.  fa.  cannot  be  pleaded  in  bar  of  the  action  of  debt.. 
Carter  V.  Caiman,  12  L-ed.,  274. 

See  (Literest  5-13.)     (Set  off,  7.) 

III.       OF    THE    ASSIGNMENT    OF    JUDGMENTS.. 

1.  A  judgment,  strii-tly  speaking,  is  not  negotiable,  yet  it  may 
be  de  facto  assigned,  and  the  law  will  so  far  taice  notice  of  the 
assignment,  as  to  protect  it  against  the  act  of  the  assignor. 
Smith  V.  Poivell,  1  Hay,,  452,  (520,)  S.  P.,  McDaniel  v.  Tate, 
Ibid,  in  the  note. 

2.  Where  A  pays  to  the  shenff  the  amount  of  an  execution 
in  his  hands,  against  C,  in  favor  of  B,  if  B  afterwards  as- 
sign his  interest  in  the  judment  to  A,  such  payment  shall  be 
deemed  a  purchase,  and  not  a  satisfaction  of  B's  claim.  Carter 
V.  Sheriff  of  Halifax,  1  Hawks.,  483. 


JUDGMENT— III-IV.  795» 

3.  Money  advanced  by  a  stranger  for  the  purchase  of  a  judg- 
ment is  not  a  satisfaction  of  it,  and  the  assignee  has  a  right  to 
receive  the  money  thereon,  and  in  case  of  the  default  of  the 
sheriff,  to  maintain  an  action  against  him  in  the  name  of  the 
assignor.  Governor  v.  Griffin,  2  Dev.,  352,  S.  P.  Foster  v.  Frost, 
4  Dev.,  424 

4.  An  assignment  of  a  judgment  to- one  of  the  parties  against 
whom  it  has  been  obtained  is  a  satisfaction ;  and  if  it  were  in- 
tended to  liave  been  kept  on  foot,  it  ought  to  have  been  assigned 
to  a  stranger  to  the  judgment.     Sherwood  v.  Collier,  3  Dev.,  380. 

5.  An  assignmeni;  of  a  judgment  is  utterly  void  at  law,  and 
cannot  be  noticed  in  a  court  of  law.  Ferebee  v.  Doxeiu  6  Ired.^ 
446. 

6.  Where  nioney  was  paid  to  the  plaintiff  in  an  execution  hj 
a  surety,  on  an  understanding  that  the  judgment  was  to  be  as- 
signed to  a  third  person,  for  the  benefit  of  "the  surety,  and  such 
assignment  was  cif't<'ricards  made,  it  was  held  that  this  was  not  a 
payment  of  the  judgment,  but  that  it  might  be  enforced  against 
the  principal,  in  the  name  of  the  plaintiff,  for  the  benefit  of  the 
surety.     Barriiujer  v.  Boy  den,  7  Jones,  187. 

See  (Judgment — Of  the  satisfaction  of  judgments,  10.) 

IV.     OF  THE  satisfaction;  of  judgments. 

1.  The  return  oi  satisfaction  to  a/?,  fa.  issuing  on  a  judg- 
ment, is  conclu«ive  upon  a  sci.  fa.  to  revive  such  judgment; 
and  the  only  way  in  which  such  return  can  be  got  rid  of,  is  by 
an  application  to  the  court  to  amend  it.  Snead  v.  Bhodes,  2 
Dev.  and  Bat,  386. 

2.  A  judgment  confessed  to  a  married  woman,  as  if  she  were 
single,  comes  within  the  operation  of  the  act  of  1826,  prescrib- 
ing the  time  within  which  the  presumption  of  payment  or  satis- 
faction on  ^jridgments  shall  arise,  notwithstanding  the  coverture, 
and  although  the  sci.  fa.  to  revive  the  judgment  is  sued  out  in 
the  name  of  the  husband  and  wife.  Jc/mson  v.  England,  4  Dev. 
and  Bat.,  70.     (See  Rev.  Code,  ch.  65,  sec.  18,) 

3.  The  entry  of  satisfaction  of  a  judgment  on  the  record  is 
evidence  to  a  jury,  from  which  they  may  infer  that  the  judg- 
ment has  been  paid ;  but,  per  se,  it  only  imports  a  release  of  the 
judgment,  and  it  may  be  shown  by  extrinsic  evidence  that  the 
judgment  was  not  in  fact  paid.     Eei/noldsv.  Magness,  2  Ired.,  26. 

4._  The  commissioners  of  Newborn  recovered  a  judgment 
against  the  sheriff  and  his  sureties  for  the  amount  of  the  taxes 
due  to  the  town,  which  he  had  collected  and  failed  to  pay  over. 
Afterwards  one  of  the  sureties  had  the  money  paid  and  an  assign- 
ment of  the  judgment  made  to  a  third  person,  by  the  attorney  of 
the  commissioners,  which  was  afterwards  ratified  by  the  commis- 


796  JUDGMENT— IV. 

sioners,  and  a  receipt  was  given  by  the  treasurer  of  the  boaTd 
to  the  sheriff,  to  enable  him  to  renew  his  bonds.  It  ivas  heldr 
first,  that  the  pa_yment  of  tiib  money,  and  the  assignment  to  a 
third  person  of  the  judgment,  did  not  amount  in  kxw  to  a  pay- 
ment and  satisfaction  of  the  judgment,  as  against  the  defend- 
ants tlierein;  and,  secondly,  that,  although  the  receipt  may 
have  operated  as  a  fraud  upon  the  court,  yet  it  was  not  conclu- 
sive as  to  the  fact  of  payment  by  the  defendants  in  the  judg- 
ment, but  might  be  explained.  Commissioners  of  Newhern  v, 
DaiVHon^  10  Ired.,  436. 

5.  Under  tlie  act  of  1826,  the  presumption  of  the  payment  or 
satisfactitm  of  a  judgment  does  not  arise  until  ten  years  after 
the  plaintiff  has  ceased  to  prosecute  his  judgment,  that  is,  until 
ten  years  after  the  day  of  the  return  of  his  last  execution.  Butts 
V.  Patfon,  11  Ired.,  262.     (See  Kev.  Code,  ch.  65,  sec.  18.) 

6.  Where  A,  a  defendant  in  an  execution,  placed  funds  in  the 
hands  of  the  sheriff  for  the  satisfaction  of  the  execution,  and  the 
sheriff  entered  on  it  "  satisfied,"  but  before  he  made  his  return 
another  arrangement  was  made  between  him  and  A,  and  the 
funds  were  withdrawn  and  applied  by  A  to  another  purpose, 
upon  which  the  sheriff  struck  out  the  entry  of  satisfaction,  it  ivas 
held  that  when  sued  upon  the  judgment  on  which  this  execution 
issued,  A  coidd  not  avail  himself  of  this  arrangement  with  the 
sheriff  in  support  of  a  plea  of  payment,  and  that  tlie  plaintiff^, 
though  he  might  proceed  against  the  sheriff,  yet  had  not  lost  hi& 
remedy  upon  the  judgment.    Tarhnton  v.  Ginfther,  13  Ired.,  100. 

7.  Where,  in  reply  to  the  alleged  presumption  of  the  payment 
of  a  judgment  arising  from  the  lapse  of  eleven  years,  it  was 
proved  that  for  seven  years  of  that  time  the  defendant  was  to- 
tally insolvent,  but  for  the  last  four  years  of  it,  he  was  able  to 
pay,  it  ivas  held  that  the  presumption  was  repelled.  Woodbury; 
V.  Taylor^  3  Jones,  50-4. 

8.  What  Avill  repel  the  presumption  of  payment,  arising  from 
the  lapse  of  time,  is  a  question  of  law,  which  it  is  error  in  the 
court  to  submit  to  the  jury,  though  should  the  jury  decide  the 
question  correctly,  it  would  prevent  the  awarding  of  a  venire  de 
novo.     Ibid. 

9.  One  joint  principal,  who  pays  the  amount  of  a  judgment 
against  him  and  the  other  principal,  has  no  equity  to  be  subro- 
gated to  the  rights  of  the  creditor;  so  that  satisftiction  of  the 
judgment  made  by  him  cannot  be  regarded  otherwise  than  as  a 
payment.     Lowe  v.  Felt  on,  7  Jones,  216. 

10.  The  parol  assignment  of  a  judgment  constitutes  the  as- 
signee an  ageut  for  the  plaintiff  to  receive  jiayment,  and  a  pay- 
ment to  him  will  discharge  the  judgment.  Bartlett  v.  Yates,  7 
Jones,  615. 

See  (Evidence — Presumption,  6.)     (Set-off,  7.)     (Sheriff — Lia- 


JUDGMENT— IV-V-YI.  797 

Ijility  as  bail,  8.)  (Sheriff — When  the  defendant  in  the  process  is 
sheriflf,  and  of  successive  sheriff's,  7.)  (Surety  and  Principal  6- 
7-22.) 

V.       OF  JUDGMENTS  AGAIXST  EXECUTORS,  ADMINISTRATORS  AND  HEIRS. 

1.  In  a  sri./a.  against  heirs  to  subject  the  lands  of  the  deceased 
to  his  creditors,  the  proper  judgment  is  against  lands  descended 
in  their  hands,  although  they  do  not  point  out  such  lands. 
Spaujht  V.  Wade,  2  Murph.,  21)o,  S.  C.  1  Car.  L.  K.  285,  (29.) 

2.  Where,  upon  a  petition  in  the  county  court  by  the  next  of 
kin  against  the  administrator  and  one  of  the  next  of  kin  (who 
was  alleged  to  have  been  fully  advanced)  for  a  settlement  and 
distribution  of  the  estate,  and  which  was  subsequently  taken  to 
the  superior  court  by  a  writ  oi  certioror'u  and  in  that  court  the  suit 
hy  the  petitioners  was  settled  and  disposed  of,  and  by  consent  it 
was  referred  to  arbitrator  to  determine  whether  the  other  next 
of  kin  had  been  fully  advanced,  and  they  returned  an  award  in 
his  favor,  upon  which  the  administrator  permitted,  without  ob- 
jection^ a  judgment  to  be  entered  against  him  for  the  amount; 
if  teas  held  that  the  judgment  was  in  effect  a  confession  of  a 
judgment  by  the  administrator  in  favor  of  his  co-defendant,  and 
was  subslantially  just,  though  he  was  a  defendant  instead  of  being 
a  petitioner;  and  as  a  sn.  fa.  had  been  issue  t  on  the  judgment, 
the  executors  of  the  administratoi-,  who  had  died,  might  enter  any 
substantial  plea  to  protect  them  in  their  representative  char- 
a(^ter.     Dozicrv.  Simmon.^,  4  Hawks,  2(3. 

3.  If  it  appear  upon  the  whole  record,  that  the  demand  of  the 
plaintiff  is  against  the  defendant  in  his  representative  character, 
a  judgment  against  the  latter  personally  will  be  reversed  as 
erroneous.     Sltearin  v.  NeviJJp.  1  Dev.  and  Bat.,  3. 

4.  Where,  on  a  warrant  against  an  administrator  for  debt,  the 
justice,  before  whom  it  was  returned,  made  the  following  entry, 
"judment  confessed  to  the  officer  by  the  administrator  for  the 
sum  of,  &c.,"  which  the  justice  signed,  it  loas  held  that  this  was 
a  valid  judgment  against  the  administrator.  B.oolcs  v.  Moses,  8 
Ired..  8k 

5.  In  an  action  on  a  justice's  judgment  against  an  adminis- 
trator, the  defendant  cannot  plead  jjJene  adminidraint,  being 
fixed  with  assets  l)y  the  judgment.     Ibkl. 

See  (Ju'lgment — Of  irregular,  void  and  erroneous  judgments, 
37-38.) 

VI.       IRREGULAR,     VOID    AND    ERRONEOUS    JUDGMENTS. 

1.  Ill  a  writ  of  false  judgment  brought  to  reverse  the  judc^- 
ment  of  a  justice,  and  a  sci.  fa.  to  the  defendant  to  come  in  and 
show  cause  against  it,  he  did  not  appear,  and  the  court,  finding 


798  JTIOGMENT-^VI. 

the  matters  a'ssigned  for  error  were  matters  of  fact,  reA*ersecl  tlie 
judgment.     Anonymous^  1  Hay.,  398,  (458.) 

2.  Reasons  in  arrest  of.jnd^-ment  cannot  be  filed,  without  per- 
mission of  the  court  on  hearing  the  reasons.  Quoere.  Long  v, 
no.ker,  2  Hay.,  128,  (291.) 

3.  The  superior  court  cannot  reverse  one  of  its  judgments  for 
'error  in  a  matter  of  law;  but  if  it  be  absolutely  void,  or  taken 
irregularly  against  the. known  rules  of  the  court,  it  may  be  set 
aside  at  any  time,  on  motion.  Anonymous^  2  Hav.,  73,  (240.) 
S.  C.  Tay.,  146,  (91.)    _S.  P.  Bevang  v.  ■ ,  2  Hay*;  239,  (424.) 

4.  A  judgment  confessed  in  vocation,  and  then  entered  on 
record  by  consent  as  of  the  preceding  term,  is  void,  and  cannot 
be  made  valid  by  any  subsequent  act  of  the  defendant.  Slo- 
cunih  V.  Anderson,  1  €ar.  L.  E.,  466,  (77.) 

5.  A  judgment  confessed  before  the  clerk,  when  there  is  no 
court,  is  irregular,  and  will  be  set  aside  on  motion.  The  rendi- 
tion of  a  judgment  is  a  judicial  act,  to  be  done  only  by  a  court. 
MaUheios  v.  ''Moore,  2  Murph  .181. 

6.  A  judgment  given  by  a  justice  of  the  peace,  from  which  an 
appeal  has  loeen  prayed  and  granted,  remains  no  longer  a  judg- 
ment, and  cannot  be  sued  on  as  such.  Marshall  v.  Lester^  2 
Murph.,  227,  S.  C.  1  Car.  L.  E.,  100,  (13.) 

7.  Where,  to  sci.  fa.  against  defendant  as  bail,  he  pleaded  cer- 
tain pleas,  and  judgment  was  rendered  against  him,  but,  upon 
appeal  to  the  superior  court,  it  did  not  appear  on  tlie  record  how 
the  pleas  had  been  disposed  of,  a  judgment  of  that  court  against 
the  defendant  was  held  to  be  erroneous.  Neshiit  v.  BaUeiv,  3 
Hawks,  57. 

8  A  judgment  against  the  defendant  named  in  the  writ,  ]d\\i 
not  made  a  party,  either  by  service,  public  notice,  or  attaching 
his  estate,  is  merely  void,  and  should  be  disregarded  when  pro- 
duced, on  mil  tiel  recoid.     Armstrong  v.  Harahaic,  1  Dev.,  187. 

9.  A  judgment  nunc  pro  tunc  is  not  erroneous,  although  it  ap- 
pears that  it  should  have  been  as  of  the  prest  term.  Arrmgton 
v.  Bass,  3  Dev.,  95. 

10.  Judgments  by  default,  signed  by  the  attorney,  without  an 
actual  {uljudication  by  the  court,  may  be  set  aside  at  any  time, 
even  after  the  term  at  which  thev  are  entered.  Bender  v.  AsJcew, 
3  Dev.,  149. 

11.  A  judgment  by  nil  dlcit,  against  an  infant  heir,  is  not  void, 
but  only  erroneous.     Ihkl     S.  P.  White  v.  Albertson,  3  Dev.,  241. 

12.  Where  a  judgment  was  rendered  against  an  infant  heir, 
upon  process  issuing  against  his  guardian,  who  appeared  for  tlie 
iiifant,  this  appearance,  although  irregular,  is  taken  to  have  been 
sanctioned  by  the  court.      White  v.  Albertson,  3  Dev.,  341. 

13.  A  judgment  is  void,  when  rendered  contrary  to  the  course 
of  the  court,  but  if  improperly  rendered  against  a  party,  when  it 
should  have  been  in  his  favour,  it  is  only  erroneous.     Ibid. 


JUDGMENT^VL  799 

14.  A  judgment  cannot  be  collaterally  impeached  for  error  if 
Tendered  according  to  the  course  of  the  court,  it  being  valid  un- 
til reversed,  however  erroneous  it  may  be.  Ibid.  S.  P.,  Wil- 
Hams  V.  Woodhovse,  3  Dev.,  257. 

15.  The  superior  court  may,  b}'  writ  of  error,  reverse  the  judg- 
ments of  a  county  court,  but  cannot  in  any  way  quash  them,  or 
supersede  theui  as  nullities.     Sicaim  v.  Fentress,  4  Dev.,  MOl. 

]  (i.  An  irregular  judgment  does  not  justify  the  plaintiff  in  any 
of  the  acts  done  under  it,  provided  it  be  set  aside,  although  ft 
does  the  officer;  and  a  stranger  gets  a  good  title,  even  if  it  be 
set  aside.  It  is  the  same  as  to  the  party  when  set  aside  as  if  it 
had  never  been.     Skinner  v.  3Joore,  2  Dev.  and  Bat.,  138. 

17.  A  judgment  is  not  irregular  because  it  is  erroneous.  Er- 
ror does  not  constitute  irregularity,  nor  does  it  necessarily  enter 
into  it.  An  irregular  judgment  is  one  entered  contrary  to  the 
course,  the  practice,  of  the  court,  as  out  of  term  time,  &c.  If  it 
appear  upon  the  record  entirely  free  from  error,  yet  the  court  by 
which  it  purports  to  have  been  pronounced  may  set  it  aside  for 
the  irregularity ;  but  no  other  court  can,  except  in  an  appellate 
capacity.     Ilnd. 

18.  The  principle  that  the  judgment  of  a  court  of  record  is 
conclusive,  until  it  is  set  aside  or  reversed,  applies  to  all  courts 
to  which  a  writ  of  error  runs  from  a  higher  com-t,  or  from  which 
an  appeal  lies  to  a  higher  court,  which  proceeds  according  to  the 
course  of  the  common  law,  because  those  are  adequate  remedies 
for  any  error.  As  to  inferior  tribunals,  or  those  having  a  special 
or  pecular  jurisdiction,  it  is  otherwise.  Their  improper  acts  may, 
in  some  instances,  bo^i-estrained  in  their  progress  by  prohibitory 
writs  from  a  court  orgeneral  superintending  powers;  or,  in  oth- 
ers, may  be  corrected  by  having  their  proceedings  brought  up 
by  certiorari  and  quashe<l;  and  in  yai  others  may  be  questioned 
by  plea.     Ihid. 

19.  It  seems  to  be  a  necessary  function  of  every  court,  and 
particularly  of  a  court  of  the  highest  jurisdiction  to  which  no 
writ  of  error  lies,  as  our  superior  courts,  to  set  aside  an  irregular 
judgment,  that  is,  one  rendered  contrary  to  the  course  and  prac- 
tice of  the  court,  at  a  subsequent  term,  provided  application  for 
that  purpose  be  made  in  proper  time.  Winslotv  v.  Andersov,  3 
Dev.  and  Bat.,  9. 

20.  In  general,  judgments  taken  without  service  of  process, 
signed  out  of  term,  or  by  default  before  the  proper  period  of  the 
term,  are  irregular.     Ihid. 

21.  If  a  judgment  by  default,  interlocutory  or  final,  be  signed 
according  to  the  course  of  the  court,  then  it  is  the  judge's  judg- 
ment, because  it  is  entered  according  to  his  directions.  And 
although  the  former  is  always  under  the  control  of  the  court, 
yet,  from  its  nature,  the  court  ought  not  to  interfere  with  the 


800  JUDGMENT— VI. 

latter,  that  is,  a  final  judgment,  after  the  term  at  which  it  is 
taken.     Ibid. 

22.  Until  set  aside,  an  irregnlar  judgment  must  in  general  be 
regarded  as  a  subsisting  and  regular  judgment,  as  to  all  the 
world.     Hid. 

23.  An  entry,  upon  the  rendition  of  a  verdict  in  favor  of  the 
plaintiff,  that  "the  defendant  is  entitled  to  a  credit  to  be  as- 
certained by  JM.  F.  and  J.  H.  S.,  and  the  clerk  is  then  author- 
ized to  enter  a  remiititar,  judgment  of  the  court  accordingly  and 
for  costs,"  is  not  a  judgment  tJien  rendered,  but  an  agreement 
for  a  judgment  to  be  rendered  subsequently  upon  the  ascertain- 
ment, by  the  referees,  of  the  credit  to  which  the  defendant  is 
entitled.     iJcnvris  v.  JJafcheJor,  3  Dev.  and  Bat.,  52. 

24.  A  judgment,  regularly  entered  at  o-ne  term  of  a  court,  can- 
not be  set  aside  by  the  court  at  a  subsequent  term.    Ibid. 

25.  Upon  a  conviction  for  a  criminal  offence,  it  is  irregular  to 
annex  to  the  sentence  any  condition  for  its  subsequent  remission, 
A  judgment,  though  pronounced  by  the  judge,  is  not  his  sen- 
tence, but  tlie  sentence  of  the  law.  It  is  the  certain  and  final 
conclusion  of  the  law  following  upon  ascertained  premises,  and 
nmst,  tlierefore,  be  unconditional.  Stale  v.  Bennett,  4  Dev.  and 
Bat.,  43. 

20.  In  cases  where  the  law  gives  to  the  judges  a  discretion 
over  the  quantum  of  punishment,  they  may,  with  propriety,  sus- 
pend the  sentence  for  the  avowed  purpose  of  affording  to  the 
convicted  an  opportimity  to  make  restitution  to  the  person 
peculiarly  aggrieved  by  his  offence,  or  to  redress  its  mischievous 
public  consequences,  and  when  judgment  is  to  be  pronounced, 
the  use  which  has  been  made  of  such  opportunity  is  very  proper 
to  be  considered  by  the  court  in  the  exercise  of  that  discretion. 
Ibid. 

27.  It  is  only  in  actions  brought  upon  contracts.,  that  the  court 
<'an  render  judgment  for  interest  on  the  amount  found  by  the 
jury.  In  other  cases  such  a  judgment  is  erroneous,  b'atterivhiie 
V.  Camon,  3  lied.,  549. 

28.  Though  there  be  but  one  judgment  in  the  superior  court, 
yet  where  it  consists  of  several  distinct  and  independent  parts, 
it  may  be  reversed  in  tlie  supreme  court  as  to  the  part  wherein 
it  is  erroneous,  and  affirmed  for  the  remainder.     Ibid. 

29.  A  joint  judgment  was  obtained  before  a  justice  against  A 
and  B,  from  which  A  appealed  to  the  county  court,  and  gave  C 
as  surety  for  the  appeal;  and  at  the  June  term,  1843,  judgment 
was  entered  against  B,  and  against  G  the  surety,  both  A  and  B 
having  appeared  and  pleaded  in  the  county  court.  This  judg- 
ment was  on  motion  at  December  term,  1843,  vacated;  and  the 
plaintiff  appealed  from  the  order  to  the  superior  court,  which 
court  dismissed  the  appeal,  on  the  ground  tliat  there  was  no  er- 
ror ill  the  judgment  of  the  county  court  at  tlie  December  term 


JUDGMENT— Vr.  801 

T843,  t7  ivas  held,  1st,  that  the  appeal  from  the  justice  took  up 
all  the  proceedings  to  the  county  court;  for  the  judgment  being 
joint,  one  half  of  it  could  not  be  vacated,  and  the  other  half  left 
valid  in  the  justice's  court;  secondly,  that  the  county  court  had 
no  power  to  reverse  a  judgment  rendei-ed  at  the  preceding  term. 
Ramsovr  v.  Roper,  7  I  red.,  34(3. 

30.  K  judgment  may  be  vacated  at  any  time,  on  motion,  in 
the  same  court  in  which  it  was  rendered,  upon  parol  proof  that 
it  was  entered  irregularly  and  not  according  to  the  course  of  the 
court;  as,  for  instance,  where  the  defendant  in  the  cause  was  an 
infant,  and  no  guardian  had  been  appointed  to  represent  his  in- 
terest.    Kcaton  v.  Banks,  10  Ired.,  381. 

31.  Where  an  action  was  brought  in  the  name  of  J.  Brooks, 
W.  E.  Colton  and  W.  E.  Churchill,  partners  ti'ading  under  the 
name  and  firm  of  "  Bi'ooks.  Colton  &  Co.,"  and  the  judgment 
was  in  the  name  of  "  Brook;^,  Colton  &  Co.,"  itivas  held  that  this 
was  a  variance  for  which,  at  common  law,  the  judgment  might 
have  been  reversed,  but  that  the  error  was  cured  by  our  statute 
of  amendments.  Brooks  v.  Batdiff,  11  Ired.,  321.  (See  Rev. 
Code,  ch.  3.  sec.  5.) 

32.  Judgments  taken  without  the  intervention  of  the  court,, 
as  of  course,  ave  from  necessity  always  under  the  conti-ol  of  the- 
court,  wliose  judgments  they  purport  to  be,  and  of  an  appellate 
court  ^\hich  can  treat  the  matter  de  novo  Wdliants  v.  Beasltv,. 
13  Ired.,  112. 

33.  A  judgment  against  an  infant,  appearing  by  attorney,,  i.s 
valid,  until  reversed  upon  a  writ  of  error.  Kar su all  \^..  Fisher, 
1  Jones,  111. 

44.  Mere  office  judgments,  such  as  one  taken  msfaw/'e*"  upon  a 
bond  for  the  appearance  of  an  insolvent  debtor,,  are  under  the 
control  of  the  court,  and  may  be  modified  or  set  aside,  upon  suf- 
ficent  cause  shown,  at  a  succeeding  term  of  the  court.  PoueU 
v.  Juplina,  2  Jones,  400. 

35.  A  judgment  exceeding  the  sum  demanded  in  the  writ  is 
erroneous,  but  not  void;  and  its  A'alidity  cannot  be  questioned 
collaterally.     Savage  v.  Hussey,  3  Jones,  149. 

3<>.  A  judgment  entered  against  a  person  who  was  not  served 
with  process,  or  in  any  way  notiiied,  and  who  did  not  aj  pear,  is 
void,  and  no  suit  can  be  brought  on  it.  StaUviys  v.  Gidly,  3 
Jones,  344. 

37.  Where  a  warrant  has  been  brought  against  an  adminis- 
trator for  the  debt  of  his  intestate,  and  the  justice,  beibre  \a  lioni 
it  is  returned,  renders  a  jutlgment  against  him  in  his  individual 
(••apacity,  it  is  error,  for  which  a  record  ri  m  the  nature  of  a  writ 
(4"  false  judgment  is  a  pnp.-r  remedy.  Hare  v.  Parham,  4 
Jones,  412. 

38,  In  a  case-  like  the  above,  the  general  rule  is  for  the  supe- 
rior court  simply  to  revene  the  false  judgment;  but  under  the 

9* 


802  JUDGMENT  VI— JURISDICTION— I-IL 

provisions  of  the  act  of  1828,  Eev.  Code,  ch.  46,  sees.  34  and  35, 
relative  to  warrants  against  executors  and  administrators,  the 
superior  court  should,  besides  reversing  the  false  judgment,  en- 
ter a  judgment  in  favor  of  the  plaintiff,  ascertaining  his  debt,  and 
then  permit  the  defendant  to  make  any  defence  he  can  by  plea 
relative  to  the  assets.     Ibid. 

39.  A  judgment  rendered  against  the  principal  and  surety  in 
an  insolvent  debtor's  bond,  when  both  were  absent  from  court  on 
account  of  sickness,  is  not  irregular  and  void,  and  cannot  be  va- 
cate-d  on  motion.      Osborne  v.  Toomer,  6  Jones,  440. 

40.  Ciei-ks,  during  the  term  of  the  court,  can  only  make  short 
minutes,  from  which  they  must  make  out  a  more  formal  record 
afterwards,  in  vacation,  and  they  are  at  liberty  then  to  draw  up 
all  judgments  and  orders  in  proper  form.     Ibid. 

See  (Judgment — Of  judgments  against  executors,  administra- 
tors and  heirs,  3.)  (Trespass — To  persons  and  personal  proper- 
ty, when  it  will  lie,  12.) 


JURISDICTION. 

I.  Jurisdiction  of  justices  of  the  peace.  [  III.  Jurisdiction  of  tlie  court  of  equity  in 
II,  Jurisdiction  of  the  county  and  supe-  selling  infant's  property. 

rior  courts.         ,  j  IV.  Jurisdiction  ot  the  supreme  court. 

I.       OF  JUSTICES    OF  THE  PKACE. 

See  (Justices  of  the  peace— Of  their  jurisdiction,  judgment  and 
execution. ) 

H.   OP  THE  COUNTY  AND  SUPERIOR  COURTS. 

1.  The  consent  or  admissions  of  a  party  cannot  give  to  a  court 
jurisdiction  of  a  subject  mattei-,  not  conferred  upon  it  by  laAv. 
State  V.  Roberts,  1  Hay.,  176,  (201,)  S.  P.  Wagoner  v.  Grove,  Cont 
Rep.,  516,  (563.) 

2.  In  the  superior  court,  under  the  act  of  1777,  if  tlie  sum 
recovered  were  less  than  £50,  nonsuit  should  be  entered. 
McNid  V.  West,  2  Hay.,  51,  (211.) 

3.  Under  the  act  which  fixed  the  jurisdiction  of  the  county 
courts  at  £20,  the  defendant  should  have  pleaded  that  the  sum 
due  was  less  than  £20  when  the  action  was  commenced,  other- 
wise tlie  court  will  not  on  motion,  after  a  verdict  for  less  than 
£20,  set  aside  the  verdict  and  enter  a  nonsuit.     Anonijmom,  2 


JURISDICTlON^-ir.  803 

na:y^  71,  (238  )  S  P    i?roo;^'5  V.   CoUins,  Taj.,  236,  (103,)  S.  C. 
Conf.  Rep.,  345,  (42o.) 

4.  The  county  court,  under  the  £20  jurisdiction  act,  will  not 
order  a  nonsuit,  if  the  sum  be  reduced  under  £20  by  a  set  off. 
Otherwise  if  by  payment.     Anonymous,  2  Hay.,  115.  (275.) 

5.  The  legislature  of  the  State  cannot  define  and  give  our 
courts  jurisdiction  of  crimes  committed  in  another  state  or 
country.     State  v.  Knhjht,  Tay,  65,  (44,)  S.  C,  2  Hay.,  109,  (267  ) 

G.  If  the  nominal  plaintiff  reside  out  of  the  State,  the  defen- 
dant may  be  sued  out  of  his  own  district,  if  the  real  plaintii! 
be  an  inhabitant  of  the  district  in  which  he  sues.  Anomimons 
Tay.,  150,  (94.)  J         ■ 

7.  The  civil  divisions  of  the  State  into  counties,  e*cc.,  must  be 
taken  notice  of  judicially  by  the  courts.  State  v.  Glasc/ow,  Conf 
Rep.,  3S,  (176.)  ^     ' 

8.  W  hile  the  law  was  that  all  indictments  for  assaults,  bat- 
teries, &c.,  should  originate  in  the  county  courts,  and  an  indict- 
ment was  found  m  the  superior  court  charging  an  assault  with 
intent  to  murder,  and  the  jury  found  the  defendant  guilty  of  a 
simple  assault  only,  it  ivas  held  that '  the  superior  court  had 
jurisdiction.     State  v.  Campton,  Conf  Rep  ,  67,  (200.) 

9.  Where  an  action  is  brought  for  the  hire  of  a  slave  and  the 
jury  assess  damages  at  less  than  £30,  the  plaintiff  must  be  non- 
suited. WiJhains  V.  Hotcombe,  1  Car.  L.  R.,  365,  (33.)  (See  Rev. 
Code,  ch.  31,  sec.  38.)  ^     ^ ' 

10  To  a  plea  in  abatement  to  the  jurisdiction,  that  the  plain- 
tiff  of  record  had  not  sued  in  his  proper  district,  it  is  a  good  re- 
plication tor  the  plaintiff,  that  the  person  having  the  beneficial 
interest  m  the  suit  resided  in  the  proper  district  to  give  the 
court  junsdictKm.     B  V  v.  BeJl,  1  ^lurph.,  95. 

11.  Tlie  superior  court  of  one  county  had  no  jurisdiction  of 
otiences  committed  in  another  county,  although  both  belonged 
to  the  same  judicial  district.  (This  was  before  the  act  of  1806, 
by  which  the  district  system  was  abolished.)  State  v.  Patterson, 
1  Murph.,  443. 

_  12.  A  plea  in  abatement  to  the  jurisdiction,  "that  the  matter 
111  contest"  was  not  of  the  value  of  £50,  in  an  action  against 
defendant  for  neghgently  keeping  his  ferry,  &c.,  cannot  be  sus- 
tained under  the  act  of  1793,  which  mentioned  "debt  or  de- 
mand,;'and  not  "the  matter  in  contest"  in  an  action  ex  delicto, 
111  which  it  cannot  be  said  before  verdict  what  the  damao-es  will 
be.     MrGdt.ee  v.  Draughon,  2  Car.  L.  R.,  260,  (240.)        ^ 

13.  The  purchasers  of  the  distributive  shares  of  next  of  kin, 
for  a  valuable  consideration,  may  proceed  against  the  personal 
representatives  of  the  deceased  by  petition  in  the  county  court 
under  the  act  of  1762,  in  their  own  names.  And  the  next  of 
km,  as  wel  as  the  personal  representatives,  are  precluded  from 
aisputmg  the  valual^le  consideration  acknowledged  by  the  deed 


80-i  JURISDICTION— IT. 

to  have  been  paid.      Wright  v.  Lotve,  2  Murph.,  354.     (See  Rev. 
Code,  ch.  64,  sec.  7.) 

14.  Objections  to  the  jurisdiction  of  the  superior  courts  must 
in  general  be  pleaded  in  abatement;  and  they  can  be  taken  on 
the  general  issue  only  in  cases  where  the  action  is  in  its  nature 
local,  as  relating  to  the  possession  of  land,  or  where  a  court  has 
no  jurisdiction  at  common  law,  or  wdiere  no  court  of  the  State 
has  jurisdiction,  or  where  it  has  been  taken  away  by  statute, 
without  prescribing  the  manner  in  which  the  objection  shall  be 
taken,  and  in  eases  of  the  like  sort.  Green  v.  Mangum,  3 
Murph.",  39. 

15.  A  plea  to  the  jurisdiction  of  the  superior  court,  that  the 
person  then  holding  the  term  as  a  judg-e  had  not  been  constitu- 
tionally appointed,  cannot  be  sustained,  because  it  involves  the 
alisurdity  of  calling  on  a  person  to  decide  that  he  is  not  a  judge, 
when  he  can  make  no  decision  at  all  unless  he  be  a  judge. 
Beard  Y.  Cameron,  3  Mm-ph.,  181. 

1().  Some  actions  of  a.  local  nature,  and  some  of  a  transitory 
kind,  must  be  brought  where  the  cause  of  action  arose;  but 
with  these  specified  exceptions,  no  action  can  be  brought  in  a 
county  in  which  neither  party  resides.  Yadkin  Navigation  Coi/i- 
pany  v.  Benton,  1  Hawks.,  422. 

l'7.  Where  a  suit  is  commenced  in  the  county  cmii't,  and  re- 
moved by  consent  into  the  superior  court,  such  removal  is  good, 
provided  the  suit  be  one  of  which  the  superior  court  may  enter- 
tain jurisdiction.      JVeM  v.  Kittrc'l,  1   Hawks.,  493. 

18.  in  debt  on  bond  for  less  than  $100,  since  the  act  of  1820 
increasing  the  jurisdiction  of  justices,  advantage  can  betaken 
of  the  want  of  jurisdiction  by  plea  in  abatement  only.  tS'iep- 
j)ard  Y,  Briggs,  2  Hawks.,  369.  (The  law  is  now  altered;  see 
Rev.  Code,  ch.  31,  sec.  38.) 

19.  A  general  jurisdiction  is  not  ousted  except  by  plain  words, 
or  a  necessary  implication,  and,  notwithstanding  the  act  giving 
a  justice  jurisdiction  in  cases  where  the  debt  and  interest  exceed 
one  huncired  dollars,  and  the  act  authorizing  the  court  to  dis- 
miss a  suit  for  leSvS,  yet,  as  there  are  no  w^ords  in  those  acts  oust- 
ing the  jurisdiction  of  the  superior  courts  in  cases  of  one  hundred 
dollars  and  interest,  it  remains.  Griffin  v.  hig,  3  Dev.,  358.  (See 
Rev.  Code,  ch.  31,  sec.  38  and  ch.  (y2,  sec.  6.) 

20.  The  agreement  of  parties  cannot  bestoAv  on  a  court  a)i  au- 
thority to  decide  a  case,  on  any  other  principles  than  those  pre- 
scrii)ed  by  law  for  its  decision.     Fagan  v.  Jacochs,  4  Dev.,  263. 

21.  An  action  on  a  sheriff's  l.iond,  in  the  name  of  the  State  for 
the>  use  of  an  injured  jtiirty,  may  be  brought  in  the  superior  court 
of  the  county  in  which  tlie  relator  resides,  though  all  the  defen- 
dants reside  in  a  different  county.  Slate  v.  Mr  Gee,  2  Ircd.,  209. 
(See  Rev.  Code,  ch.  31,  sec.  37.) 

22.  The  superior  court  has  jurisdiction  of  an   action  founded 


JURISDICTIOX— n.  805 

on  two  notes  amounting  together,  principal  and  interest,  to  one 
hundred  dollars  or  more,  but  neither  of  which  alone  amounts  to 
that  sum.     iVcCasfen  r.  Qnirni,  4  Ired.,  43 

23  Under  an  act  passed  in  1842,  establishmg  the  county  of 
Union,  an  indictment  against  citizens  of  Union,  pending  m  An- 
son superior  court  at  the  tall  term,  1843,  should  have  been  tmns- 
ferred  to  the  superior  court  of  Union  though  the  place  where 
the  offence  was  committed  was  still  m  Anson,     i^tate  v.  Hart,  4 

Ired  ,  222. 

24  It  must  appear  upon  the  records  of  eveiy  county  court, 
that  at  least  three  justices  were  present  to  constitute  and  hold 
the  court,  as  a  less  number  is  not  competent  to  constitute  a. 
court  But  if  it  appear  that  three  justices  opened  the  couit,  it 
will  be  intended  that  they  continued  to  hold  it  notwithstanding 
the  adjournment,  unless  others  be  specially  named  as  being  pres- 
ent on  subse  pent  davs  of  the  term.     State  v.  Kiiif/,  5  Ired,,  203. 

25  In  an  action  of  assumpsit  for  goods  sold  and  delivered,  the 
damages  were  laid  at  $200,  and  the  evidence  m  support  of  it 
was  an  instrument  in  the  following  words:  '-Received  1500 
(hundred)  weight  of  bacon  at  6  cents,  and  128  fts.  of  lard  — \Vm 
Taber;"  and  the  back  was  endorsed  "credit  $3(1"  The  jury  found 
a  verdict  for  $76;  and  it  was  held  that  the  instrument  was  neither 
a  promissory  note  nor  a  liquidated  account,  and  therefore  the 
ca^e  did  not  come  within  the  act  of  1826,  which  prohibited  the 
courts  from  taking  pirisdiction  of  any  sum  less  than  $100  due  by 
bond,  note  or  hquidated  account;  and  if  this  were  not  so,_yetthe 
court  could  not  dismiss  the  suit  on  motion,  as  the  action  Avas 
commenced  for  more  than  $100,  which  would  make  a  plea  in 
abatement  the  proper  remedy.  Newman  v.  Tahor,  5  Ired.,  231. 
(See  Rev.  Code,  ch.  31,  sec.  38.) 

26.  The  State  can  bring  an  action  m  the  superior  court,  on  a 
l)ond  payable  to  herself,  for  a  less  sura  than  one  hundred  dollars; 
for  general  stcttutes  do  not  bind  the  sovereign  unless  expressly 
mentioned  in  them      State  v.  Garland^  7  Ired.,  48. 

27.  ApUruitiff  in  an  action  of  assumpsit  cannot  be  nonsuited, 
though  the  verdict  of  the  jury  is  for  less  than  $(50,  if  he  file  an 
affidavit  in  the  words  of  the  act  "that  the  sum  for  which  his 
suit  is  brought,  (being  over  $60,)  is  really  due,  but  ^for  want  of 
proof  he  cannot  make  recovery."  BrooMdre  v.  BrooMnre,  8 
Ired.,  74.  (See  Rev.  Code,  ch.  31,  sees.  37  and  38,  which  do  not 
continue  the  provision  contained  in  the  42d  section  of  the  31st 
chapter  of  the  Rev.  Stat.,  but  substitute  a  plea  in  abatement 
instead  of  it.) 

28.  Where  a  court  consists  of  more  than  two  members,  a  ma- 
jority is  competent  to  do  all  the  business,  which  the  court  can 
do  where  all  the  members  are  present,  unless  the  legislature 
.otherwise  direct.     State  v.  Woodside,  8  Ired.,  104. 

29.  Where  the  priiicipal  «um  in  a  promissory  note  is  under  one 


806  JUEISDICTIOM— IL 

hundred  dollars,  but  the  interest  accrued  makes  the  whole  sum 
due  on  the  note  upwards  of  one  hundred  dollars,  the  county- 
court  has  jurisdiction  of  a  suit  brought  on  it.  Birch  v.  Hoivell, 
8  Ired.,  468.     (See  Rev.  Code,  ch.  31,  sec.  38.) 

30.  Under  the  acts  establishing  the  county  of  Polk,  connected 
with  the  general  act  on  the  subject  ol  jurisdiction,  a  citizen  of 
the  county  of  Polk  has  no  right  to  institute  ^a  suit  in  the  superior 
court  of  Eutherford  county  against  another  citizen  of  Po1k,  and 
on  plea,  such  a  suit  must  be  dismissed.  Allen  v.  Blills,  8  Ired., 
473. 

31.  Notwithstanding  the  act  of  1844,  ch.  12,  declares  that 
there  shall  be  no  jury  trials  in  the  county  court  of  Buncombe, 
yet  that  county  court  still  retains  its  original  jurisdiction  in 
bastardy  cases,  and  if  the  defendant  tender  an  issue,  the  case 
must  be  removed  to  the  superior  court  by  certiorari^  that  the 
issue  may  be  there  tried.     State  v.  Sluder,  8  Ired.,  487. 

32.  The  provisions  of  the  42d  section  of  31st  chapter  of  the 
Revised  Statutes  apply  to  suits  in  the  superior  court  of  Cleve- 
land county,  removed,  under  the  private  acts  of  1844  and  184G, 
fi-om  the  county  to  the  superior  court  of  that  county^  Parham 
V.  Hardin,  11  Ired.,  219.     (See  Ptev.  Code,  ch.  31,  sec.  37.) 

33.  Under  the  act  of  1848,  relating  to  the  county  of  Polk,  all 
the  records  transferred  to  the  superior  court  of  Polk  from  the 
county  of  Rutherford  are  directed  to  be  returned  to  the  superior 
court  of  Rutherford  county,  the  act  of  1846  establishing  the 
superior  courts  of  Polk  having  been  repealed  by  the  act  of  1848, 
and  it  teas  held  that  the  superior  court  of  Rutherford'  had  the 
power  to  issue  an  execution  on  a  judgment,  rendered  in  the 
county  of  Polk  while  it  had  jurisdiction,  as  to  cases  from  the 
former  county,  removed  bv  the  act  of  1846,  and  re-transferred 
by  the  act  of  1848.     3Iatthews  v.  Gdreath,  11  Ired.,  244. 

34.  Where  a  petition  had  been  hied  in  the  county  court  by 
the  next  of  kin  of  an  intestate  for  the  sale  of  negroes,  for  the 
purpose  of  distribution,  and  a  sale  had  been  made  by  a  commis- 
sioner appointed  by  the  court,  according  to  the  prayer  of  the 
petitioners,  and  he  had  paid  over  to  them  what  he  alleged  to  be 
their  full  respective  shares,  it  is  not  competent  for  the  petitioners 
to  file  a  subsequent  original  petition  in  the  same  court,  charging 
that  the  commissioner  had  not  paid  them  their  full  shares,  (they 
having  signed  a  receipt  in  full  by  mistake,)  and  requiring,  the 
commissioner  to  account,  &c.,  and  to  pay  over  the  balance,  &c. 
Their  relief  could  only  be  obtained  by  an  application  to  the 
county  court  for  a  rehearing,  if  the  proceeding  of  the  commis- 
sioner had  beeii  confirmed,  or  by  recourse  to  a  court  of  equity 
to  set  aside  tliC' receipt,  if  given  through  a  mistake..  Beid  v. 
Pass,  11  Ired.,  589. 

35.  When  it  appears  from  the  record,  that  a  cause  was  tried 
at  a  special  terra  of  the  superior  couxt,,  it  is:  to  be- presumed, 


JUKISDICTION— II.  807 

prima  facie,  that  an  order  for  holding-  it  was  duly  made,  and  that 
it  was  duly  held.     Sparhnan  v.  BaugJdn/,  13  Ired.,  168. 

36.  The  true  meaning  and  import  of  the  act,  Rev.  Stat.,  ch. 
31,  sees.  40  and  42,  are  that  if  the  jury  shall  find  a  less  sum  than 
$60  to  be  due  to  the  plaintiff,  he  shall  not  be  nonsuited,  if  he  shall 
show  by  affidavit  that  the  sum,  for  Avhich  the  suit  is  brought,  is 
really  clue,  "but  for  want  of  proof,  or  that  the  time  limited  for 
the  recovery  of  any  article  bars  a  recovery,"  or  that  for  some 
other  cause  of  a  like  kind  the  verdict  was  for  so  small  a  sum,  so 
as  to  show  that  the  suit  was  commenced  in  the  superior  court  in 
good  faith,  and  not  for  the  purpose  of  evading  the  operation  of 
the  act;  the  verdict  being  held  to  he  only  prima  facie  evidence 
of  an  intent  to  make  such  an  evasion.  As,  for  instance,  where 
the  plaintiff  fairly  thougiit  he  was  entitled  to  interest,  but  the 
jury  would  not  allow  it.     Johnston  v.  Francis,  13  Ired.,  465. 

37.  A  action  may  be  maintained  in  any  one  of  the  counties 
of  this  state,  when  both  plaintiff"  and  defendant  are  citizens 
of  other  states.  Miller  v.  Blacli,  2  Jones,  341,  S.  P.  Walters  v. 
Breeder,  3  Jones,  64. 

38.  Whei-e  a  payment  had  been  made  on  a  note,,  which  was 
originally  for  more  than  $100,  which  payment  reduced  it  below 
that  sum,  but  was  not  endorsed  on  the  note,  nor  known  to  the 
plaintiff,  who  was  assignee  of  the  note,  when  the  suit  was 
brought,  it  was  held  that,  altliough  the  note  was  overdue  when 
the  assignment  was  made,  the  superior  court  had  jurisdiction  of 
the  cause,  and  the  plaintiff"  could  not  be  nonsuited  under  the  act. 
Bean  v.  Baxter,  2  Jones.  356.  (The  act  is  somewhat  altered. 
See  Rev.  Code,  ch.  31,  sees.  37  and  38.) 

>  39.^  The  act,  Rev.  Code,  ch.  31,  sec.  37,  providing  a  venue  for 
transitory  actions,  makes  no  provision  for  tlie  case  of  a  resident 
plaintiff  and  a  non-resident  defendant,  and  it  was  lielcl,  therefore, 
that  the  case  remains  as  at  the  common  law,  which  allows  the 
plaintiff'  to  sue  in  any  county,  subject  to  the  poAver  of  the  court 
to  change  the  venue  according  to  certain  rules  governing  its 
course.     Covill  v.  Moffitt,  7  Jones,  381. 

40.  As  a  corporation  has  no  actual  residence,  it  may  be  sued  in 
the  counT;y  court  of  any  county  in  the  State,  in  which  the  plaintiff 
resides.  Morehead,  v.  Atlantic  a^id  North  Carolina  Bailroad 
Conqjoiiy,  7  Jones,  500. 

41.  The  acts  of  1844  and  1846,  abolishing  jury  trials  in  the 
county  court  of  a  certain  county,  and  giving  exclusive  jurisdic- 
tion to  the  superior  court  where  the  intervention  of  a  jury  is 
necessary,  embrace  an  action  of  assumpsit  begun  by  attachment, 
as  well  as  when  it  is  commenced  by  a  ccqnas  ad  respondendum. 
Harris  v.  Hampton,  7  Jones,  597. 

42.  The  fact  that  a  county  court,  by  a  special  statute,  cannot 
have  jury  trials,  does  not  deprive  a  party  of  his  common  law 
right  to  have  issues  of  fact  tried  by  a  jury ;  for  the  issues  when. 


808  JURISDICTION— TI-III. 

ma(ie  up  may  be  removed  to  the  superior  court  for  trial. 
Buchanan  v.  McKenzi',  8  Jones,  91,  S.  P.  Buchanan  v.  McKenzic, 
8  Jones,  95. 

43.  The  county  courts  liave  a  discretionary  power  to  set  aside 
a  verdict  and  judgment  and^grant  anew  trial,  at  any  time  during 
the  term,  and  the  propriety  of  its  exercise  cannot  be  re-exam- 
ined on  an  appeal.     Scaf  v.  Bufldn^  8  Jones,  161. 

44.  An  action  of  covenant  for  quiet  enjoyment  is  transitory, 
and,  though  entered  into  in  another  state,  the  courts  of  this  state 
may  take  jurisdiction  of  it.     Jacl'son  v.  Hanna,  8  Jones,  188. 

45.  The  powers  of  a  court  of  limited  jurisdiction,  like  the 
county  court,  cannot  be  enlarged  by  implication.  Thompson  v. 
Cox^  8  Jones,  311. 

See  (Executors  and  Administrators— Of  sales  by  executors 
and  administrators,  and  herein  of  purchases  by  them  at  their 
own  sales,  26-27.)  (Habeas  corpus,  3.")  (Tenants  in  common, 
.30.) 

in.   OF  THE  COURT  OF  EQUITY  IN  SELLINU  INPANl's  PROPERTY. 

1.  A  court  of  equity  has  a  general  jurisdiction  to  direct  the 
sale  of  the  estates  of  infants,  whenever  the  purpose  for  which 
the  sale  is  directed  shall  be  deemed  by  the  court  beneficial  to 
the  infants.      WiUianis  v.  Harrington,  11  Ired.,  616. 

2.  The  decree  in  such  a  case  cannot  be  impeached  in  any  oth- 
er court ;  neither  upon  the  ground  that  a  guardian  was  not  ap- 
pointed by  the  proper  court,  nor  that  there  was  not  due  adver- 
tiseinent  or  competent  evidence  of  it,  nor  that  the  interest  of 
the  infant  was  not  promoted  by  the  sale,  nor  that,  for  any  other 
reason,  it  was  not  a  proper  case  for  a  sale,  nor  that  the  decree 
did  not  find  the  facts,  which  showed  the  sale  to  be  beneficial, 
nor  upon  any  similar  grounds.     7  bid. 

3.  Where  a  decree  is  made  on  behalf  of  infants,  for  the  sale  of 
the  lands  of  the  deceased  debtor  lying  in  Moore  county,"  and 
a  sale  is  made  of  several  sf)ecified  parcels  of  land,  the  sale  rati- 
fied, and  an  order  of  the  court  to  convey  to  a  particular  pur- 
cliaser,  no  exception  can  be  taken  to  the  general  description  of 
the  land  in  the  decree  ordering  the  sale.     Ibid. 

4.  The  court  has  the  power,  with  the  consent  of  the  rej^uted 
purchaser,  to  substitute  another  person  in  his  place;  though,  as 
a  matter  of  wholesome  practice,  such  a  substitution  ought  not 
to  be  allowed  l)efore  the  payment  of  the  purchase  money,  nor, 
perhaps,  without  looking^ to  the  rights  even  of  third  persons,  as 
against  the  first  purchaser.     Ihid. 

5.  Under  an  order  of  the  court  of  equity  for  the  sale  of  the  real 
estate  of  infants,  the  deed  of  the  commissioner,  appointed  to  make 
the  sale  by  virtue.of  the  provisions  of  the  act  of  1827,  transferred 


JURISDICTION— III-IY.  809 

to  the  purcliaser  the  legal  title.  Ibid.  (See  Eev.  Code,  ch.  54, 
sees.  32  and  33  ) 

(J.  A  sale  of  land  by  a  decree  ol  the  court  of  equity  is,  in  ef- 
fect, a  sale  by  the  owner  of  the  land  through  the  agency  of  the 
court.      Williams  v.  Counnl,  8  Jones,  229. 

7.  Where  land  of  an  infant  was  sold  by  a  decree  of  the  court 
of  equity,  and  tlie  purchaser  went  into  possession,  but  no  deed 
was  made  hj  the  master  daring  his  continuance  in  office,  it  teas 
held  that  during  this  time  the  purchaser  was  in  as  the  tenant  of 
the  former  owner,  and  that  his  taking  a  deed  from  the  clerk  and 
master  after  his  going  out  of  office  did  not  change  that  relation. 
Nor  was  the  relation  changed,  so  as  to  make  the  possession  ad- 
verse, by  the  purchaser's  making  a  deed  in  trust  to  secure  debts 
but  still"  remaining  in  possession.  Nor  was  it  changed  by  an 
agreement  of  the  purchaser  to  sell  the  land  absolutely,  and  an 
entry  and  possession  by  the  party  contracting  to  buy,  he  ac- 
knowledging hhnself  the  tenant  of  the  first  purchaser.     Ibid. 

See  (clerks  and  Clerks  and  Masters — Deeds  executed  by  Clerks 
and  Masters.) 

IV.       OF    THE    SUPREME    COURT. 

1.  No  agreement  of  the  parties  can  confer  on  the  supreme 
court  a  jurisdiction  to  render  any  other  judgment,  than  what, 
in  law  appears  to  them  ought  to  have  been  rendered  in  the  su- 
perior court.     Bethea  v.  3IcLennon,  1  Ired.,  523. 

2.  Upon  the  death  of  one  of  the  judges  of  the  supreme  court, 
the  two  surviving  judges  have  full  power  and  authority  to  hold 
the  court  and  exercise  all  its  functions.  State  v.  Xa?ie,41red.,  434. 

3.  The  only  jurisdiction  conferred  on  the  supreme  court  in 
cases  at  common  law  is  appellate,  after  a  judgment  in  the  supe- 
rior court;  and  where  there  has  been  no  such  judgment  the  su- 
preme court  will  not  entertain  jurisdiction  of  the  cavise.  Mc- 
Kenzie  v.  Little,  9  Ired.,  45. 

4.  The  supreme  court  has  no  original  jurisdiction  of  a  sci,fa. 
against  bail,  in  an  action  brought  to  it  by  appeal,  and  in  which 
judgment  has  been  rendered  against  the  principal.  The  sci.  fa. 
must  be  issued  in  the  court  below,  in  which  the  bail  bond  was 
taken  and  returned.     Jones  v.    3IcLaurine,  7  Jones,  392. 

5.  The  supreme  court  cannot  talce  jurisdiction  of  a  suit  at 
law  removed  by  consent,  either  before  or  after  judgment.  Hod- 
man V.  D'lvis,  8  Jones,  134. 

S^e  (Habeas  Corpus,  3-4.) 


810 


JURY— I. 


II. 


JURY. 


Who  are  competent,  and  who  are  ex- 
empt as  jurors. 
Liability  ot  jurors  for  non-attendance. 


III.  Of  challenges  to  the  jurj^ 

IV.  Of  the  conduct  and  the  province  of 

the  jury  in  the  trial  of  causes. 


I.       WHO    ARE    COMPETENT,    AND    WHO    ARE    EXEMPT     AS    JURORS. 

1.  A  freeholder  in  another  state  is  not  competent  to  serve  as 
a  juror  in  this  state,  but  the  objection  comes  too  late  after  ver- 
dict.    State  V.  Greeirivood,  1  Hay.,  141,  (162.) 

2.  The  act  of  1771),  (Rev.  Code,  ch.  31,  sec.  20,)  which  requires 
that  county  courts  shall  not  nominate  persons  to  serve  as  jurors, 
who  have  suits  at  issue  at  the  term  to  which  they  are  to  be  sum- 
moned, is  only  directorv  and  does  not  apply  to  grand  jurors. 
State  V.  Oldliani,  1  Hay.," 450,  (518.) 

3.  Where  a  jury  has  decided  in  a  suit  on  one  bond,  they  are 
competent  to  sit  in  another  suit  on  another  bond  in  which  the 
question  is  the  same.  Slieppard  v.  Cook,  2  Hay.,  238,  (422:) 
(But  see  Baker  y.  Harris,  1  Winst.,  277.) 

4.  A  commissioner  of  navigation  is  not  exempt  from  serving 
as  a  talesman.  State  v.  Hoijij,  2  Murph.,  319,  S.  C.  N.  C  Term 
R.,  254,  (684.) 

5.  Freeholders  in  another  state,  owning  no  freehold  in  North- 
Carolina,  are  not  qualified  to  serve  as  juors  in  this  state,  and 
talesmen  must  be  freeholders  of  the  same  description  as  those  of 
the  original  panel.     Sheejpsliants  v.  Jones,  2  Hawks,  211. 

().  If  the  sheriff  summon  as  talesmen,  persons  w^ho  are  not  by- 
standers in  the  courthouse,,  the  calling  them  in  will  make  them 
competent  as  such,  whether  they  could  Jiave  been  fined  lor  non- 
attendance  or  not.     State  v.  Lamon,  3  Hawks,  175. 

7.  An  order  to  the  sheriff  to  summon  talesmen  need  not  be 
returnable  the  same  day  it  issued.     Ihid. 

8.  The  law  is  silent  as  to  the^  number  of  talesmen  to  be  sum- 
moned, and  the  court  may,  in  its  discretion,  determine  the  num- 
ber, or  leave  the  sherifi'  to  summon  as  many  as  he  may  deem 
necessary.  Ibid.  (The  matter  is  now  regrtlated  by  statute,  see 
Rev.  Code,  ch.  35,  sec.  30.) 

9.  A  statement  on  the  record  that  "  on  ballotting,  the  follow- 
ing jurors  are  duly  elected,  sworn  and  charged  to  serve  as  grand 
jurors,"  &"c.,  shows  a  sufficient  compliance  Avith  the  act  of  1779. 
State  V.  Seaborn,  4  Dev._  305.     (See  Rev.  Code,  ch.  31,.  sec.  34.) 

10.  An  irregularity  in  the  mode  of  empanelling  a  grand  jury 
can  only  be  taken  advantage  of  by  a  plea  in  abatement  upon  the 
arraignment,  and  the  objection  comes  too  late  after  verdict.  Ibid. 

11.  The  act  of  Congress  of  1825,  ch.  275,  sec.  35,  exempting 
postmasters  to  serve  on  juries,  is  constitutional;  and  they  cannot 


JUKY— I-II-III.  811 

be  compelled  to  serve  as  jurors  on  the  original  panel  in  the  state 
courts,  though  it  seems  they  may  be  compelled  to  serve  as  tales- 
men.    Stcde  V.   JViJIiaws,  IDev.  and  Bat.,  372. 

12.  On  the  trial  of  a  capital  case,  the  names  of  the  jurors  o£ 
the  original  panel  should  be  first  put  into  the  box  and  di-awn,.. 
before  those  of  the  talesjurors  are  put  in  and  drawn ;  and  the 
jurors  summoned  under  the  special  venire  facias,  provided  by  the 
act  of  1830,  are,  in  this  respect,  to  be  regarded  as  talesmen.  State 
V.  Benton,  2  Dev.  and  Bat.,  196. 

13.  The  court  has  a  right  to  excuse  jurors,  who  have  been, 
summoned  upon  a  venire  in  a  capital  case,  upon  their  application 
for  any  reasonable  cause..    State  v.  Craton,  G  Ired.,  164. 

14.  A  person  who  is  exempted  by  law  from  serving  onjuries,. 
is  not  bound  to  serve  as  a  juror  on  a  special  venire.  State  v. 
Whitforch  12  Ired.,  99. 

15.  If  it  appear  that  an  order  for  a  special  venire  wasobtained,  and 
that  the  jurors  attended,  it  is  not  necessary  that  the  record  should 
positively  show  tliat  the  writ  was  issued  by  the  clerk,  as  it  will 
be  presumed  that  the  writ  did  issue.     State  v.  Perry,  Busb.,  330. 

16.  To  constitute  a  legal  jury  under  the  arct,  Rev.  Stat.,  ch.  35, 
sec.  17,  it  is  not  necessary  that  any  jurors  should  be  summoned 
under  the  special  venire.  The  prisoner  has  a  right  to  the  full 
benefit  of  the  onder  of  the  court  directing  a  special  venire,  and 
if  the  order  has  not  been  obeyed,  it  would  be  a  good  objection 
to  the  court's  proceeding  with  the  trial ;  but  it  rhe  prisoner  select 
his  jury,  without  objection  on  that  ground,  it  is  a  waiver  of  it. 
lUd.     (See  Rev.  Codes,  ch.  35,  sec.  30.) 

17.  It  is  not  necessary  to  the  legal  constitution  of  a  grand 
jury,  or  their  legal  transaction  of  business,  that  an  officer  should  be 
appointed  to  wait  upon  them.  It  is  convenient  and  proper  that 
they  should  have  such  an  officer,  and  when  a  constable  is  ap- 
pointed, he  must  take  the  prescribed  oath ;  but  not  so  with  the 
sheriff",  wdio,  being  a  sworn  officer  of  the  court,  can  properly 
attend  on  the  grand  jury  without  such  an  oath  having  been 
taken  by  him.     Ibid. 

See  (Constitution — Acts  which  have  been  declared  constitu- 
tional, 12.) 

n.'      LUBH^lTY    OF    JURORS    FOR    N02f-ATTENDAXCE. 

1.  If  a  juror  be  fined  for  non-attendance,  he  is  liable  to  be 
taxed  with  a  fee  to  the  solicitor  or  attorney  for  the  state  on  a 
sci.fa.  against  him.     State  v.  Whisenhurt,  1  Murph.,  287. 

UI.       OF    CUALLENGf:S    TO    THE    JURY. 

1.  If  the  prisoner  challenge  the  36th  juror  peremptorily  on  a 
capital  trial,  his  challenge  shall  be  disallowed.     State  v.  Qay^ier, 


812  JURY— III. 

Conf.  Rep.,  305,  (392.)  S.  C.  2  Hay.,  140,  (312.)  (Only  twenty 
three  peremptoiy  challenges  are  now  allowed.  Rev.  Code,  ch. 
35,  sec.  32.) 

2.  When  a  prisoner  silently  acquiesces  in  any  irregularity  in 
forming  a  jury,  and  especially  when  he  partially  consents  to  it 
i'or  the  sake  of  having  a  trial,  he  waives  his  right  to  make  any 
exception  to  the  jury  after  trial.     State  v.   Ward,  2  Hawks.,  443. 

3.  An  alien  is  not  entitled  to  a  jury  c/e  medietate  linguae  in 
North  .Carolina.     State  v.  Antonio,  4  Hawks.,  200.  ' 

4.  A  slave  indicted  for  a  capital  felony  is  entitled  to  a  jury  of 
slave  owners.  State  v.  Jim,  1  Dev.,  142.  (See  Rev.  Code,"  ch. 
107,  sec.  34.) 

5.  General  hostility  between  a  juror  and  a  party,  without  any 
connection  with  the  action  to  be  tried,  is  a  good  cause  of  chal- 
lenge; but  the  fact  that  the  juror  and  one  of  the  parties  are 
stockholders  in  the  sareie  incorporated  turnpike  company  is  not 
a  good  cause  of  challenge.     Brittain  v.  Allen.  2  Dev.,  120. 

6.  The  right  of  challenge  is  intended  to  secure  an  impartial 
trial,  by  excluding  objectionable  persons  from  the  panel,  and  not 
to  enable  the  accused  to  select  a  jury  of  his  own  choice;  there- 
fore, where  a  juror  was  tzliallenged  for  cause  by  the  State,  and 
the  cliallenge  allow^ed,  and  then  the  jury  was  completed  before 
the  prisoner's  peremptory  challenges  were  exhausted,  the  suffi- 
ciency of  the  State's  cause  of  challenge  will  not  be  examined. 
^tate  v.  Arthur,  2  Dev.,  217. 

7.  The  State  need  not  assia-n  her  cause  of  challenge,  nntil  the 
panel  is  exhausted;  and  then  the  prosecuting  officer  must  show 
the  cause,  and,  if  it  be  not  allowed  by  the  court,  the  juror  must 
be  sworn  and  tendered.     Ibid. 

_  8.  The  officer  prosecuting  for  the  State  may,  on  a  capital  trial, 
direct  a  juror  to  stand  aside  until  the  panel  be  gone  through 
with,  which  is  a  challenge  for  a  cause  to  be  shown  at  the  end  of 
the  panel;  a'5:id  if  a  cause  be  then  shown  and  disallowed,  the 
prosecuting  officer  may  still  challenge  the  juror  peremptorily,  or 
not,  at  his  discretion.  But  this  practice,  of  permitting  the  pros- 
ecuting officer  to  defer  showing  his  cause  of  challenge  until  the 
panel  be  gone  tiirough,  must  be  exercised  under  the  supervision 
of  the  court,  who  will  restrain  it,  if  applied  to  an  unreasonable 
number.  State  v.  Benton,  2  Dev.  and  Bat'.,  196.  (The  State  is 
allowed  four  peremptorory  challenges,  bv  statute,  in  capital  cases. 
See  R,ev.  Code,  ch.  35,  sec.  33.) 

9.  The  juror  may  be  examined  as  to  opinions,  honestly  formed 
and  honestly  expressed,  manifesting  a  bias  of  judgment,  not  re- 
ferable to  personal  partiality  or  malevolence;  but  if  the  opinion 
has  been  made  up  and  expressed  under  circumstances  which  in- 
volve dishonor  and  guilt,  and  where  such  expression  may  be  vis- 
ited with  punishment,  he  ought  not  to  be  required  to  testify,  so 
a«  to  criminate  himself.     Ibid. 


JURY— III.  813 

10.  An  opinion  fully  made  up  and  expressed  against  either 
party,  on  the  subject  matter  of  the  issue  to  be  tried,  is  good 
cause  of  principal  challenge;  but  an  opinion  imperfectly  form- 
ed, or  one  merely  hypothetical,  that  is,  fomided  on  the  supposi- 
tion that  facts  are  as  they  have  been  represented  or  assumed  to 
be,  does  not  constitute  a  cause  of  principal  challenge,  but  mav 
be  urged  by  way  of  challenge  to  the  favor,,  which  is  to  be  al- 
io v>^ed,  or  disallowed,  as  the  triers  nuiy  find  tlie  fact  of  favor  or 
indifferency.     Ibid. 

11.  A  challenge  of  a  juror,  because  of  his  having  formed  and 
expressed  an  opinion  upon  the  question  to  be  tried,  can  be  made 
only  by  the  party,  against  .v  horn  it  was  so  formed  and  expres- 
sed.    Ibid. 

12.  The  forbearing  of  a  court  to  discharge  a  juror,  to  whom 
no  exception  has  been  taken,  though  there  be  ascertained  cause 
of  challeuge  against  him,  cannot  be  assigned  for  error,  because 
the  right  of  challenge  in  the  parties  remains,  and  neither  of 
them  can  be  injured  by  such  forbearance  to  act  on  the  part  of 
the  court.     Ihid. 

13.  The  nature  and  legal  consequences  of  the  practice  of  put- 
ting what  is  called  the  preliniiaanj  quesfion  to  jurors  upon  cap- 
ital trials  explaijied,  and  such  practice,  except  under  particular 
circumstances,  disapproyed  of;  and  the  legal  and  regular  mode 
of  trying  exceptions  to  jurors,  and  forming  juries  on  trials  for 
capital  offences,  pointed  out  and  recommended.     Ibid. 

14.  The  disallowance  of  a  legal  challenge,  whereby  the  party 
taking  the  exception  is  compelled  to  accept,,  as  a  juroi',  a  person 
whom  he  had  a  right  to  reject,  is  a  grouiid,  not'  properly  for  a 
new  trial,  but  for  a  venire  de  novo.  It  is  a  denial  to  him  "of  an 
imperative  rule  of  law,  which  vitiates  the  verdict,  and  lays  a 
good  foundation  for  a  writ  of  error.     Ibid. 

15.  An  objection  to  the  grand  jury  comes  too  late  after  a  plea 
to  the  felony.     Slate  v.  Blartin,  i  Ired.,  101. 

IG.  The  right  to  challenge  a  juror  is  a  right  to  reject,  not  to 
select;  and  therefore  neither  of  two  defendants  on  a  joint  trial 
upon  an  indictment  has  cause  to  cumplain  of  a  challenge  bv  the 
other.     State  v.  Smith,  2  Ired.,  402. 

17.  Where  a  juror  was  challeuged  for  cause,  and  it  appeared 
that  his  wife  was  cousin  to  the  prisoner's  former  wife,  who  was 
now  dead  leaving  no  children,  if  wan  held  that  this  was  no  cause 
of  challenge,  the  affinity  having  ceased  with  her  death.  &tuJe 
V.  Shou\  3  Ired.,  532. 

18.  Tlie  improper  allowing  or  disallowing  of  a  challenge  is  a 
ground  for  a  venire  de  novo,  not  as  a  matter  of  tliscretion  in  the 
court,  but  of  rio-ht  to  the  pai'ty;  and  it  is  therefore  a  good  foun- 
dation for  a  writ  of  error.     Ibid. 

ll>.  The  withdrawal  of  a  juror  from  the  panel  by  the   court 
without  6'?^'c«e?(^  cause,  is  in  law,  however  excusable  the  error 


§14  JURY— III 

an  arbitrarv  withdrawal,  for  which  the  court  has  no  authority. 
Ibid. 

20.  The  jurors  of  the  original  vewre  constitute  a  distinct  pan- 
el. When  that  panel  is  perused,  or  gone  through  witli,  without 
forming  a  jury,  any  individual  member  thereof,  who,  upon  the 
chaUenge  of  the  State,  has  been  set  aside  to  see  whether  a  jury 
might  not  be  formed  from  the  panel  without  him,  must  be 
brought  forward  and  challenged  or  taken,  before  the  special  ve- 
nire^ or  tofe^s  jurors,  can  be  resorted  to.     Ihid. 

21.  hi  the  trial  of  a  capital  case,  the  original  venire  ought  to 
be  tirst  drawn  and  tendered;  but  if  the  judge  should,  where 
there  are  only  eleven  of  the  original  panel,  direct  tales  jurors  to 
be  drawn  with  them,  the  prisoner  will  have  no  right  to  a  venire 
de  novo  on  that  account,  if  he  have  had  an  opportunity  of  ac- 
cepting or  of  rejecting  all  of  the  original  venire.  State  v.  Lytic, 
5  Ired.,  58. 

22.  Where  one  of  the  venire,  upon  being  called,  was  challenged 
by  the  State  and  directed  to  retire  until  the  panel  was  gone 
tlirouo-h  with,  and  was  not  afterwards  recalled,  the  prisoner 
making  no  motion  to  that  effect,  and  it  being  known  that  the  ju- 
ror was  a  witness  for  the  prisoner,  it  luas  held  that  this  was  no 
ground  for  a  venire  de  novo  on  the  part  of  the  prisoner.     Ibid. 

23.  After  the  petit  jury  in  a  capital  case  has  been  sworn  and 
-empannelled,  it  is  too  late  to  object  that  the  grand  jury  was 
drawn  by  a  boy  of  thirteen  years  of  age.  If  the  objection  had 
been  a  good  one  at  any  time,  it  ought  to  Imve  been  made  in  the 
form  of  a  challenge  to  the  array  before  the  petit  jury  was  sworn. 
State  V.  Undencood,  G  Ired.,  06. 

24.  The  state's  challenge  to  a  juror  for  cause  need  not  be  de- 
t;ided  on  immediately,  but  it  is  in  the  discretion  of  the  court  to 
let  it  stand  until  the  panel  be  gone  through.  State  v.  Craton,  G 
Ired.,  1G4. 

25.  In  forming  a  jury  in  a  capital  casa  if  a  person  be  chal- 
lenged for  cause,  and  state  upon  his  examination  "  that  he  had 
formed  and  expressed  an  opinion  adverse  to  the  prisoner,  upon 
rumors  whicli  he  had  heard ;  but  that  he  had  not  heard  a  full 
statement  of  the  case,  and  that  his  mind  was  not  so  made  up  as 
tc)  prevent  the  doing  of  impartial  justice  to  the  prisoner,"  the 
court  may  find  him  indifferent,  and  having  so  found  as  a  matter 
of  fact,  the  supreme  court  cannot  revise  the  decision.  State  v. 
Ellington,  7  Ired.,  61.       _      _ 

26.*  On  the  trial  of  an  indictment  against  a  slave  for  a  capital 
offence,  it  is  good  cause  of  challenge  on  the  part  of  the  State  to 
one  called  as  a  juror,  tliat  he  is  nearly  related  to  the  owner  of 
the  slave,  as  it  would  be  on  the  part  of  the  prisoner  that  a  juror 
"was  a  near  relative  of  the  prosecutor.  State  v.  Anthoni/,  7  Ired., 
234. 

27.  On  a  trial  for  a  capital  offence,  a  special  venire  for  one  hun- 


JURY— III.  815 

drecl  jurors  was  ordered  and  returned,  and  after  the  original 
panel  Avas  perused  and  exhausted,  the  court  ordered  thirty-six 
oi  the  tales  jurors  to  be  drawn,  and,  these  being  exhausted  by 
challenges,  directed  the  remaining  tales  jurors  to  be  drawn,  the 
prisoner  at  the  time  making  no  objection ;  and  it  was  held  that 
there  was  no  error  in  the  proceeding,     btafev.  Nash,  8  Ired.,  35. 

28.  Where,  on  a  capital  trial,  the  prisoner  challenges  a  juror 
for  favor,  and  the  solicitor  for  the  State  aduaits  tlie  cause  assigned 
to  be  true,  the  prisoner  is  bound  by  his  challenge,  and  cannot 
afterwards  be  allowed  to  have  the  matter  tried,  either  by  triers 
or  the  court.     State  v.  Creasman,  10  Ired.,  395. 

29.  Where  a  juror,  upon  being  challenged,  swears  that  he  has 
formed  and  expressed  an  opinion,  but  only  upon  rumor,  and  that 
he  could  do  impartial  justice,  upon  hearing  evidence  in  the  case, 
■prima  facie  the  juror  is  competent,  though,  in  some  cases,  the 
court  or  the  triers  may  find  otherwise.  State  v.  Dove,  10  Ired., 
469. 

30.  Although  a  juror  may  sit  on  the  trial,  against  whom  there 
■\va«  good  cause  of  challege,  yet  the  party,  by  not  having  made 
the  objection  in  time,  waived  it.     Briggs  v.  Byrd,  12   Ired,,  377. 

31.  The  relationship  of  a  juror  to  the  prisoner,  whether  by  con- 
sanguinity or  marriage,  is  a  good  cause  of  principal  challenge 
on  the  part  of  the  State,  but  such  relationship  must  be  withm 
the  ninth  degree.  Plence,  where  the  great-grandmother  of  the 
juror  and  the  grandmother  of  the  prisoner  were  sisters,  it  was 
held  that  the  juror  w^as  in  the  proscribed  degree,  and  was  proper- 
ly rejected.     Stale  y.  Perry,  Busb.,  330. 

32.  A  defendant,  upon  a  trial  for  a  felony,  though  clergyable, 
is  entitled  to  challenge  peremptorily  thirty-five  jurors.  State  \. 
Caldicell,  1  Jones,  289.  (Twenty-three  peremptory  challenges  is 
the  number  now  allowed.     See  Eev.  Code,  ch.  35,"  sec.  32.) 

33.  It  is  too  late  after  a  juror  has  been  tendered  and  taken  bv 
a  prisoner,  and  has  served  on  the  trial,  for  the  prisoner  to  except 
to  his  competency.     State  v.  FatricJ:,  3  Jones,  443. 

34.  Where,  upon  the  trial  of  a  capital  case,  the  scrolls,  contain- 
ing the  names  of  tlie  jurors  in  the  special  venire,  had  on  them 
the  surnames  of  the  persons  written  in  full, 'but  the  christian 
names  were  only  indicated  by  initial  letters,  no  objection  having 
been  made  when  the  scrolls  were  put  into  a  hat  to  be  drawn  out, 
it  loas  held  that  this  formed  no  ground  for  a  challege  to  the  jurors. 
State  V.  Simmons^  6  Jones,  309. 

35.  A  challenge  to  a  juror,  propter  affectum-,  involves  a  question 
of  law,  as  well  as  of  fact;  and  though  by  consent  the  judge  be 
allowed  to  take  the  place  of  "triers,"  yet  his  decision  on  a  ques- 
tion of  law  may  be  reviewed  in  the  supreme  court.     Seliorn  v. 

Williams,  6  Jones,  575. 

3(i.  It  is  a  good  cause  of  challenge  to  a  person  tendered  as  a 
juror  in  a* civil  case,  that  he  is  the  son-in-law  of  one  who  is  the 


816  JURY— III. 

surety  for  the  prosecution  of  the  suit;  and  where  the  relation- 
tonship  is  admitted  or  found,  it  is  purely  a  question  of  law.    Ibid. 

37.  It  is  not  a  good  cause  of  a  challenge  to  a  juror  that  he  has 
formed  and  expressed  an  opinion  against  the  prisoner  upoii  mere 
rumor,  when  he  declares  that  the  rumor  has  not  produced  such 
an  impression  upon  his  mind  as  to  prevent  is  doing  impartial 
justice  to  the  prisoner.     State  v.  Bone,  7  Jones,  121. 

38.  The  prisoner  has  no  right  to  postpone  showing  his  cause 
of  challenge  to  a  juror  unto  the  end  of  the  panel,  that  being 
altogether  the  privilege  of  the  State.     Ibid. 

3*:).  It  is  no  ground  for  a  cliallenge  to  the  array  in  a  capital 
case,  that  it  does  not  appear,  from  an  order  fcr  a  special  veiiii  e 
facias,  that  it  was  made  in  the  case  of  the  prisoner.     It  is  suffi- 
cient if  it  appear  that  it  was  made  at  the  term  Avhen  the   trial 
w^as  had.     State  v.  3Iurph,  1  Winst.,  1 29._ 

40.  A  challenge  to  the  array  of  jurors  is  generally  founded  on 
a  charge  of  partiality,  or  some  default,,  in  the  sherift"  or  other 
ofiicer  summoning  them.     Ibid. 

41.  Where  an  action  brought  by  A  against  B  for  fraudu- 
lently removing  a  debtor,  was  tried  and  a  verdict  found  for  the 
defendant ;  and  immediately  afterwards  the  same  jury  was  called 
and  tendered  in  a  suit  for  the  same  transaction  by  C  against  B, 
and  were  challenged  by  the  plaintifl:';  it  was  hdd,  1st,  that  the 
challenge  was  one  to  the  polls,  and  not  to  the  array;  2nd,  that 
it  was  a  principal  cause  of  challenge  involving  matter  of  law, 
and,  therefore,  liable  to  be  reviewed  upon  an  appeal;  and,  3rd, 
that  the  jurors  were  incompetent,  by  reason  of  having  set  upon 
and  deci(^ed  the  other  case,  and  that,,  consequently,  the  challenge 
ought  to  have  been  allowed.     Baler  v.  Harris,  1  Winst.,  277. 

42.  Jurors  ouglit  not  to  be  asked  either  on  oath  or  otherwise, 
whether  their  minds  are  in  such  state  that  they  can  try  a  case 
fairlv  and  impartially.  Their  answers  can  have  no  influence  on 
the  question  of  their  competency,  and  it  is  an  improper  practice 
to  ask  them.     Ibid. 

43.  If  a  challenge  by  the  prisoner  for  good  cause  be  disallow- 
ed, and  the  juror  be  tlien  challenged  peremptorily  by  the  pris- 
oner, but  the  panel  is  completed  before  he  has  challenged  pe- 
rfmptorily  as  many  as  twenty  theie  jurors,  there  is  no  cause  for 
a  new  trial.     Slate  v.  Cod-man,  2  Winst,  95. 

44.  A  juror  challenged  by  the  prisoner,  because  he  had  formed 
and  expressed  an  opinion  that  the  prisoner  was  guilty,  said  on 
his  exaniination  by  the  court,  that  he  had  formed  and  expressed 
an  opinion  to  that  eliect  trom  rinnor,  but  that  he  thought  he 
pould  give  an  impartial  verdict  on  the  trial,  was  p:operly  ad- 
judged by  the  com-t  to  be  a  proper  juror  to  be  temleretl  to  the 
prisoner.      Ibi<t. 

See  (Ba^tarny— Proceedings  in  bartardy  <  ases,  32.)  (Jiny — 
Who  are  competent  and  wlio  exempt  as  jin-ors. 


JURY^IV.  817 

IV.       OP  THE  CONDCCT  AND  PROYIXCE  OF  THE  JDRT  IN  THE  TRIAL  OF  CAUSES. 

1.  If  the  jury  in  a  capital  case  separate  without  giving  a  ver- 
dict, the  prisoner  shall  not  be  again  put  upon  his  trial  for  the 
same  offence.     S'ate  v.  Garngucs,  1  Haj.,  241,  (276.) 

2.  If  a  trial  be  by  thirteen  jurors,  it  is  good  cause  for  a  writ  of 
error.      W/tifehurstv.  Davis,  2  Hay.,  113,  (272.) 

3.  If  two  jurors  in  a  capital  case  retire  without  permission  and 
without  an  officer,  it  shall  not  vitiate  the  verdict,  if  they  will 
make  affidavit  that  they  spoke  to  no  one  while  they  were  out. 
State  V.  CarsfapJicn,  2  Hay.,  238,  {i-22.) 

4.  It  is  the  province  of  the  jury  to  weigh  the  evidence,  while 
it  belongs  to  the  court  to  say  whether  the  evidcuce  offered  be 
conducive  to  prove  tiie  fact.     Jones  v.  Fulgham,  2  Murph.,  364. 

5.  If  the  jury  take  refreshments  while  they  are  charged  with 
a  case,  it  is  no  cause  for  a  new  trial,  unless  it  appear  that  the 
refreshments  were  furnished  by  the  party  in  whose  favor  they 
rendered  their  verdict.     State  v.  SiMirou;  3  Murph.,  487. 

6.  It  is  the  province  of  the  jury  to  decide,  not  only  on  the 
veracity  and  credit  of  the  witnesses,  but  also  on  what  facts  are 
proved  by  the  testimony;  and  it  is  error  in  the  court  to  direct 
the  jury  that  they  must  infer  one  fact  from  another.  Bank  of 
Neiohernx.  Pvjh,  1  Hawks,  11)8. 

7.  ]\lisc(niduct  on  the  part  of  a  jury,  to  impeach  their  verdict, 
must  be  shown  by  other  testimony  than  their  own.  State  v. 
McLeod,  1  Hawks^  344. 

8.  A  short  absence  of  one  of  the  jurors  empanelled,  for 
necessary  purposes  and  witliout  any  imputation  of  improper 
motives,  docs  not  vitiate  the  verdict  of  the  jury.  State  v.  Lytle, 
5  Ired.,  58. 

9.  The  jury,  after  they  were  empanelled,  went  in  a  body,  under 
the  care  of  the  sheriff,  a  mile  and  a  half  in  the  country  for  recre- 
ation, but  they  were  kept  together,  and  no  one  was'  permitted 
to  speak  to  them,  nor  were  they  permitted  to  speak  to  any  one, 
and  upon  returning  they  immediately  retired  to  their  room,  and  it 
teas  held  that  there  was  no  impropriety  in  this,  and  it  was  no 
separation  of  the  jury.     State  v.  Perry,  Busb.,  330. 

10.  The  jury  are  not  judges  of  the  law  in  criminal  trials,  and 
the  court  commits  no  error  in  telling  them  so.  State  v.  Peace.  1 
Jones,  251. 

11.  Where  two  of  the  jurors  charged  in  a  capital  case  left  the 
rest  of  the  jury  for  fifteen  or  twenty  minutes,  but  did  not  speak 
to  any  one  about  the  prisoner  or  his  trial,  nor  hear  any  one  speak 
of  him,  it  was  held  that  there  was  no  gi'ound  for  awarding  a 
venire  d^  r.ovo.     State  v.  Hester,  2  Jones,  83. 


10^ 


818  JUSTICES  OF  THE  PEACE^E- 


JUSTICES  OF  THE  PEACE. 


I.  Of  justices'  warrants  in  civil  cases. 
II.  Of  justices'  warrants  in  criminal  pro- 
ceedings. 
III.  Of  the  granting  of  new  trials  by  jus- 
tices. 


IV    Of  their  jurisdiction,  judgment  and^ 

execution. 
V.  Of  justices' executions  levied  on  land": 
and  returned  to  courf. 
VI.  Of  the  responsibility  of  justices. 


I.       OP  JUSTICES    WARRANTS  IN  CIVIL  CASES. 

1.  A  warrant,  that  does  not  state  that  the  sum  demanrled  is- 
over  five  pounds,  but  only  that  it  is  under  twenty  pounds,  will' 
not  authorize  an  arrest  under  the  act  of  178(),  which  authorized 
an  arrest  when  the  sum  demanded  was  over  five  pounds.  Lut- 
terloh  V.  PowelJ,  1  Hay.,  395,  (455.) 

2.  A  warrant  is  erroneous,  and  the  judgment  on  it  may  be  re- 
versed, if  it  do  not  appoint  some  time  and  place  within  thirty 
days  for  the  defeudant's  appearance.     Anoinimovs,  1  Hay.,  398, 
(4d8.) 

3.  The  plaintiff  must  state  in  his  warrant  the  nature  of  his  de- 
mand, so  as  to  give  notice  to  the  defendant  for  what  he  is  sued. 
Hence,  if  a  warrant  demand  a  sura  as  due  by  account,  the 
plaintiff  cannot  claim  damages  for  breach  of  an  agreement.  Da- 
vis v.  Watters,  2  Hay.,  172,  (363.) 

4.  When  a  person  signs  a  paper,  which  may  relate  either  to- 
ll is  personal  or  political  character,  if  it  is  intended  to  relate  to 
thi.>  latter,  it  ought,  for  the  sake  of  certainty,  to  be  so  expressed. 
But  it  the  paper  be  peculiar  to  his  political  character,  there  is  no 
need  of  any  addition  to  his  signature.  Hence  a  warrant  signed 
by  a  justice  cannot  be  avoided,  though  he  does  not  mention  his 
political  character.     fSiler  y,  JFayrl,  1  Car.  L.  R.,  548,  (161.) 

5.  Til  warrants  upon  penal  statutes  before  a  single  justice,, 
there  must  be  son^e  reference  to  the-  statute  which  gives  the 
[)enalty,  and  the  omission  of  it  will  will  be  fatal  even  after  a 
verdict.  Sroter  v.  JFInrrinr/ton,  1  Hawks.,  192,  S.  P.,  Buncombe 
Tirnpike  Comparnj  v.  McCarson,  1  Dev.  and  Bat.,  306.- 

6.  If  a  warrant  state  the  parties,  the  sum  demanded  and  how 
due,  it  is  sutlicient.     Hamilfon  v.  Jervis,  2  Dev.  and  Bat,,  327. 

7.  A  warrant  f(.)r  a  penalty  nnist  set  forth  the  acts  which  give 
the  penalty  to  the  plaintiff,  in  order  to  show  "liow  the  sum  is 
duo,"  which  is  a  matter  of  su-betance.  But  the  plaintifi  may 
amend  by  agreeing  to  claim  no  costs  from  the  defendant.     Duf- 

_///  V.  Averitf,  5  Ired.,  455. 

M.  A  warrant  from  a  justice  in   a  civil  case  need  not,  on  its^ 
face,  be  returnable  on  a  certain  day  or-  at  a  certain  place,  but 
only  within  tliirty  days.     The  day  and  place  are  to  be  notified 
by  the  constable  who  serves  the  warrant.    Ibid. 


JUSTICES  OF  THE  PEACE— I-II.  819, 

9.  A  justice  s  warrant  in  a  civil  case  requires  no  seal.     Ihid. 

10.  A  justice's  warrant  in  a  civil  case  must  name  the  proper 
parties,  and  state  a  cause  of  action  within  the  justices'  jurisdic- 
tion, both  as  to  tlK3  nature  and  the  amount  of  the  demand.    Ibid. 

11.  The  justice's  warrant,  for  a  penalty  in  not  working  on  a  pub- 
lic road,  need  not  show  on  its  tace  that  the  road  was  in  the 
county  in  which  the  warrant  issues.  AVarrants  never  have  a 
Venue;  and  the  objection,  even  if  the  case  had  been  in  a  court 
of  record,  must  have  been  taken  advantage  of  by  plea  in  abate- 
ment.    Ihid. 

12.  Tne  continuances  of  a  warrant  need  not  be  ""stated  on  the' 
face  of  the  proceedings.     State  v.  Ccnolly,  6  Ired.,  243. 

13.  A  seal  is  not  required  to  be  affixed  to  an  attachment  or 
warrant  issued  by  a  justice  in  a  civil  case.  Parker  v.  Gilreath, 
7  Ired.,  400. 

14.  The  prea:mble  to  a  warrant  constitutes  part  of  it,  and 
where  it  sets  out  in  apt  words  the  olfence  for  which,  as  the  plain- 
tiff alleged,  the  defendant  had  incurred  the  penalty  sued  tor,  the 
form  is  a  proper  one.     Narsnaw  v.  Croio,  11  Ired.,  240. 

15.  The  same  strictness  is  not  required  in  the  deseripti*  n  of  a 
note  in  a  justice's  warrant,  as  is  required  in  a  declaration  in 
court.  It  is  suflicient,  if  the  warrant  describe  the  cause  of  ac- 
tion, so  as  to  bring  it  within  the  jurisdiction  of  a  single  justice, 
as  defined  by  statute.     Emmit  v.  McMillan.  13  ired.,  7. 

16.  A  justice  has  no  authority  under  the  act  of  1741,  Eev. 
Stat.,  ch.  24,  sec.  10,  to  appoint  a  special  constable  to  execute  a 
warrant,  or  any  other  process,  in  a  civil  case.  Garlick  v.  Jones,  3 
Jones,  404.     (See  Rev.  Code,  ch.  24,  sec.  11.) 

17.  A  warrant  against  a  railroad  company  for  the  non-pay- 
nuiut  of  a  certain  sum  "  due  by  damage  sustained,"  there  being 
nothing  in  any  other  part  of  the  proceedings  to  make  it  more 
definite,  is  fatally  defective.  Wagoner  v.  Nort'i  Carolina  Bail- 
road  CourpaMy,  5  Jones,  367. 

See  (Arvest,  8.) 

n.       OF   JUSTICES   WARRANTS    IN    CRIMINAL    PROCEEDINGS. 

1.  If  a  justice  issue  a  warrant  for  a  matter  Avithin  his  jurisdic- 
tion, though  he  may  have  acted  erroneously  in  the  previous 
stages,  the  officer  should  execute  it;  but  if  it  be  for  a  matter  not 
wifhin  his  jurisdiction,  the  ofiicer  ought  not  to  execute  it.  'State 
v.  Curtis.  1  Hay.,  471,  (543.) 

2.  If  the  officer  be  a  known  one  of  the  district  where  he  is  act- 
ing, he  need  not  show  his  warrant  when  he  makes  the  arrest; 
but  if  he  be  an  officer  appointed  for  a  special  purpose,  he  ought 
to  show  his  warrant,  if  demanded.     Ihid. 

3.  When  he  makes  the  arrest,  he  should  briefly  inform  the  party 
arrested  of  the  cause;  otherwise  the  arrest  is  not  good.     Ihid. 


820  JUSTICES  OF  THE  PEACE— II. 

4.  If  the  warrant  want  a  seal,  it  is  void,  and  will  not  justify 
the  officer  in  making  an  arrest.     Ibid. 

5.  A  search  warrant  can  be  granted  only  to  seize  stolen  goods; 
and  Avhen  a  warrant  recited  that  A  had  enticed  the  negroes  of 
B  to  leave  him,  and  that  he  was  harboring  them,  and  com- 
manded the  officer  to  seize  them,  held  that  the  justice  had  no 
authority  to  issue  it,  and  that  it  did  not  justify  the  officer.  Stata 
V.  McDonald,  3  Dev.,  468. 

6.  An  officer  cannot  decide  whether  a  warrant,  professedly 
within  the  jurisdiction  of  the  magistrate  issuing  it,  be  issued 
properly,  but  he  must,  at  his  peril,  determine  whether  he  who 
issued  it  had  jurisdiction  of  the  matter.     Ibid. 

7.  A  warrant  to  arrest  persons,  neither  named  nor  described, 
is  void.  And  a  warrant,  reciting  that  A  B  and  "  company  "  had 
committed  an  ofience,  and  commanding  the  officer  to  apprehend 
said  "  company,"  will  not  justify  the  arrest  of  any  person ;  for 
the  mandatory  part  does  not  direct  the  taking  of  A  B  by  name, 
or  by  any  description,  and  it  is  not  helped  by  the  recital ;  for  the 
Avords  "said  company"  refer  only  to  the  company  with  A  B, 
and  not  to  A  B  himself     Mead  v.  Yoimg,  2  Dev.  &  Bat.,  521.  _ 

8.  Criminal  process,  defective  for  uncertainty  in  the  descrip- 
tion of  the  defendant,  is  not  aided  by  the  act  of  1794,  providing 
that  warrants  shall  not  beset  aside  for  want  of  form,  for  that 
act,  in  its  terms,  applies  to  civil  process  only;  and  besides,  XhQ 
description  of  the  defendant  is  matter  oi  substance.  Ibid.  (See 
Rev.  Code,  ch.  02.,  sec.  22.) 

9.  A  warrant  for  the  appreheneion  of  a  man's  person  cannot 
be  rightfully  altered,  even  by  another  magistrate,  after  it  has 
finally  left  the  hands  of  the  "one  who  issued  it.  And  if  it  be 
altered  by  another  magistrate,  after  it  has  been  so  issued,  by  in- 
serting the  name  of  another  person  to  be  apprehended,  it  will  be 
no  justification  to  the  officer  who  executes  it,  for  j-aking  such 
other  person.     Hash'ns  v.  Younff,  2  Dev.  &  Bat.,  .'■)27. 

10.  In  a  warrant  for  the  penalty  incurred  by  a  violation  of  the 
act  prohibiting  the  sale  of  spirituous  liquors,  &c  ,  near  a  church, 
&c.,  it  is  not  necessary  to  name  the  person  or  persons  to  whom 
the'  articles  were  sold ;  because  each  act  of  selling  is  not  a  dis- 
tinct offi.'nce,  but  only  one  offence  is  committed,  and  only  one 
penalty  incurred  by  the  same  individual,  by  any  ]iumber  of  salea 
to  any  number  of  persons  in  the  same  day.  .^/rf/e  v.  Muse,  4 
Dev.  &  Bat.,  319.     (See  Eev.  Code,  ch.  97,  sees.  7  and  10.) 

11.  A  warrant  for  the  penalty  under  the  acts  (before  they 
were  revised  and  consolidated)  sliould  have  conchuled  against 
the  form  of  ike  statnfes;  the  rule  being,  that  when  an  act  cannot 
!.e  made  out  to  be  criminal,  or  a  penalty  to  be  incurred,  without 
reading  more  than  one  statute,  it  is  then  necessary  that  the  in- 
dictment, Avarrant  or  declaration  should  conclude  "against  the 
form  of  the  statutes,"  in  the  plural.     Ibid.     (The  rule  is  now 


JUSTICES  OE  THE  PEACE— 11  821 

altered  and  no  judgment  shall  be  stayed  whether  the  conclusion 
be  either  in  the  singular  or  plural.    See  Rev.  Code,  ch.  35,  sec.  20.) 

12.  A  justice  has  no  right  to  issue  a  search  warraut  for  run- 
away slaves,  or  for  such  as  have  been  seduced  away.  He  can 
only  issue  sucli  a  warrant  lor  goods  or  cliattels,  which  are  dis- 
tinctly alleged  to  have  been  stolen.    State  v.  3ian  b  Ired  ,  45. 

13.  Where,  on  the  face  of  a  search  warrant,  it  ;  ppeors  that 
the  justice  had  no  jurisdiction,  it  will  not  protect  th^  officer  who 
executes  it  from  being  a  trespasser.     Ibid. 

14.  The  justice  ought  not  to  issue  any  warrant  except  on  the 
oath  of  some  person;  bnt  although  it  does  not  appear  to  have 
been  issued  on  oath,  the  officer  is  justified  in  executing  it,  if  the 
subject  matter  be  within  the  justice's  jurisdiction.     Ibid. 

15.  A  seal  is  indispensably  necessaiy  to  a  warrant  issued  by 
a  justice  to  arrest  a  defendant  ou  a  criminal  charge.  Welch  v. 
Scott,  5  Ired.,  72. 

IB.  It  is  the  duty  of  a  justice,  before  issuing  a  warrant  on  a 
criminal  charge,  except  in  cases  si  per  visum,  io  require  evidence 
on  path  amounting  to  a  direct  charge,  or  creating  a  strong  sus- 
picion of  guilt;  and  an  inntjcent  pei-S(ni,  arrested  ou  a  warrant 
iSciued  by  a  justice,  ]K)t  on  his  own  view,  nor  on  any  oath,  would 
have  an  action  against  the  justice.  But  the  officer  executing 
such  warrant  is  justified,  the  subject  matter  being  within  the 
justice's  jurisdiction,  though  it  do  not  appear  upon  what  evidence 
it  was  issued.     Ibid. 

17.  A  seal  is  essential  to  a  warrant  issued  by  a  justice  to  arrest 
a  person  for  a  criminal  offence,  and  if  there  be  no  seal,  the  war- 
rant is  void,  and  the  defendant  is  justified  in  resisting  its  execu- 
tion     Slate  V.   JVorley,  11  Ired.,  242. 

18._  Wiiether  there  be  a  seal  or  not,  is  a  mixed  question  of  law 
and  fact,  to  be  decided  by  the  judge  below,  and  from  his  decis- 
ion there  is  no  appeal  to  the  Supreme  ('ourt.     I  hid. 

19.  A  justice  has  no  power  to  issue  a  warrant  to  search  for  a 
runawa3^  negro,  and  neither  the  justice  who  issues  it  nor  the 
officer  who  acts  under  it  will  be  protected  against  an  action  of 
trespass,  by  one  whose  premises  are  invaded.  Cohoo.i  v.  Sjjecd,  2 
Jones,  133. 

20.  file  deputation  to  a  person  to  execute  a  state's  warrant 
mider  the  act,  IJev.  Stat.,  ch.  34,  sec.  10,  ceases  with  the  execu- 
tion of  the  warrant  and  the  return  of  it,  together  with  the  bring- 
ing the  defendant  therein  before  a  justice.  Stxtc  v.  Dean,  3 
Jones,  303.     (See  Rev.  Code,  c'-.  24,  sec.  11.) 

21.  The  deputation  of  such  person  to  take  a  defendant  to  jail, 
under  a  mittimvs,  cannot  be  given  by  the  justice  by  parol,'but 
must  be  in  writing.     Ibid. 

22.  A  state's  warrant  issued  in  a  county  bordering  on  South 
Carolina,  charging  that  the  defendant  "committed  murder 
somewhere  between  this  place  and  Texas,"  is  void,  as  being  too 
vague  and  indefinite.     Price  v.  Grahan,  3  Jones,  545. 


«22  JUSTICES  OF  THE  PEACE— II-III-IV. 

23.  A  warrant  to  arrest  a  fugitive  from  justice  under  the  act, 
Eev.  Stat.,  cli.  35,  sec.  5,  is  required  to  be  issued  by  two  justices, 
and  is  void  if  issued  by  one  only.  Ibid.  (Such  a  warrant  may 
now  be  issued  by  one  justice.     See  Eev.  Code,  ch.  35,  sec.  5.) 

24.  Where,  in  the  recital  of  a  state's  warrant  issued  by  a  jus- 
tice, the  true  name  of  the  defendant  is  inserted,  but  in  the  man- 
datory part  it  ismisreeited,  the  discrepancy  will  be  cured  by  the 
reference  to  the  name  in  the  recital.  If  it  were  necessary,  how- 
ever, the  justice  Avho  issued  it  might,  at  any  time  afterwards, 
correct  the  mistake.     BJair  v.  Horfon,  6  Jones,  543. 

See  (Penal  Statutes,  5-9-15.)     (Tounis,  3.) 

III.       OF    THE  GRANTING  OF  NEW  TRIALS  BT  JUSTICES. 

1.  Where  a  judgment  Avas  rendered  by  a  justice  against  an 
absent  party,  and  the  party  within  ten  days  thereafter  applied 
for  a  new  trial  under  the  act.  Rev.  Stat.,  cli.  02,  sec.  15,  the  jus- 
tice has  no  ria'ht  summarily  to  vacate  the  judgment;  and,  if  he 
do  so,  the  order  will  be  void,  and  the  original  judgement  will  re- 
inain  in  lull  force.  *S7oa.>^  v.  3IcLean,  12  Ired.,  2(J0.  (See  Rev. 
Code,  ch.  G2,  sec.  15.) 

2.  It  was  the  duty  of  the  jusrice,  in  such  case,  to  issue  a  no- 
tice to  the  opposite  party,  and  an  order  to  summon  witnesses 
and  produce  all  the  papers  before  him,  or  some  other  justice,  at 
someday  within  thirty  days,  in  the  mean  time  directing  a  for- 
bearance of  proceedings ;  and  on  the  appointed  day  the  case  should 
be  recon  idered.     Ibid. 

IV.       OF  THEIR  JURISDICTION,  JUDGMENT    AND  EXECUTION. 

1.  The  judgment  of  a  justice  does  not  l)ind  lands;  and  if  the 
defendant  sell  his  land  before  a  levy  upon  them  under  a  justice's 
judgment,  the  purchaser  will  acquire  a  good  title,  though  the 
levy  be  afterwards  returned  to  tlie  court,  and  the  lands  be  sold 
under  an  order  of  court  made  for  that  purpose.  Cresman  v. 
Geoive.  Tay.,  22,  (17.) 

2.  When  a  trial  by  jury  is  dispensed  with,  the  justice  rai-ist 
nevertheless  observe  the  course  of  the  cnminon  law  in  trials;  he 
must  give  notice  to  the  party  of  the  charge  against  him,  and 
give  him  an  opportunity  of  making  his  defence;  and  the  evi- 
dence must  be  siu_;h  as  the  common  law  approves  of,  unless  the 
statute  expressly  directs  otherwise.  Sfote  v.  B'trrou;  3  Murph . ,  121. 

3.  Whenever  a  special  power  is  given  to  a  justice  by  statute 
to  correct  an  offender  in  a  summary  way,  withcnit  a  trial  by  jury, 
he  must  strictly  pursue  that  power.     Ibid. 

4.  WTien  a  levy  is  made  by  a  coi>staDle  on  the  defendant's 
land  under  a  justice's  execution,  and  returned  the  same  day  to 
the  county  court,  which  commenced  its  session  on  that  day,  held 
that  this  was  a  return  "  to  the  next  court,"  under  the  act  regu- 


JUSTICES  OF  THE  PEACE— IV.  823 

lating  the  duties  of  constables  in  that  respect.     Lanier  v.   Stone, 
1  Hawks,  329._ 

5.  When  a  justice  issues  an  execution  in  the  first  instance, 
against  "  goods  and  chattels,  lands  and  tenements,"  such  execu- 
tion is  not  in  the  form  required  by  the  act  of  1794,  but  if  the  con- 
stable return  that,  in  default  of  chattels,  he  lias  levied  on  land, 
it  corrects  the  irregularity,  and  it  is  also  cured  by  the  KJth  sec- 
tion of  the  act  of  1794.  Ih  I.  (SeeKev.Code,  ch.  ()2,8ecs.  lGand22.) 

6.  It  is  not  necessary  that  a  vend,  exjjo.,  issuing  from  court  on 
a  constable's  levy  on  land,  should  be  made  returnable  at  any 
given  time,  as  it  Avill  be  returnable,  of  course,  to  the  next  ensu- 
ing term.     1  bid. 

7.  Whan,  on  the  return  of  a  constable  that  he  had  levied  on 
land,  a  vend.  e:cpo.  was  moved  f  )r,  and  a  writ  issued  as  follows, 
"•  ordered  by  the  court  that  the  land,  &c.,  (describing  them) 
levied  on  by  the  constable  be  sold,"  though  the  order  of  sale  and 
the  paper  called  the  vend.  expo,  be  blended  together,  yet  it  suffi- 
ciently api)ears  that  there  was  such  order.     Ibid. 

8.  Where  a  record  states  that  a  vend.'expo.  was  returned,  on 
the  first  day  of  the  term,  satisfied  by  the  sale  of  land,  and  it 
appears  from  the  case  that  the  land  was  actually  sold  on  the  se- 
cond day  of  the  term,  it  will  be  presumed  that  the  clerk  made 
euch  an  entry,  on  the  record,  with  reference  to  the  legal  fiction 
that  the  term  consists  of  but  one  day.     Ibid. 

9.  Whi:  a  judgment  and  execution  are  written  on  the  same 
paper  -.viih  the  w^arrant  issued  by  a  justice,  and  the  w^arrant  is 
properly  directed,  such  direction  will  also  extend  to  the  execu- 
titin,  and  need  not  be  therein  repeated.  Fu^h'.jfi''  y.  iSykes,  2 
Hawks.,  54,  S.  P.,  Gorernorw  Bailey,  3  Hawks.,  463. 

10.  An  execution  from  a  justice  of  the  peace  binds  lands  from 
"the  \&y\,  and  an  order  of  sale  subsequently  made  has  relation 
back  to  that  time.     EUav  v.  Raij,  2  Hawks.,  508. 

11.  By  the  act  of  1803,  all  executions  issued  by  a  justice  of 
the  peace  must  be  made  returnable  in  thre^  months,  and  an 
officer  is  not  at  liberty  to  return  them  unexecuted,  in  a  shorter 
time.  Neshit  v.  Balloiv,  3  Hawks.,  57.  (See  Pie  v.  Code,  ch.  62, 
sec.  16.) 

12.  A  justice's  execution  binds  chattels  from  its  teste.  Becl-- 
■erdite  v.  Arnold,  3  Hawks.,  296. 

13.  When  a  justice  enters  a  judgment  on  tlio  back  of  a  war- 
rant, and  writes  "execute  and  sell  according  to  law%"  the  latter 
words  must  be  deemed  an  execution;  and  if  a  constable  receive 
the  money  under  it  from  the  defendant,  he  and  his  sureties  will 
be  liable  therefor  on  his  official  bond.  Governor  v.  Bailey,  2 
Hawks.,  463. 

14.  A  justice  has  no  jurisdiction,  where  the  sum  sought  to  be 
reiGOV,ered  is  not  Bj  balance  due,  but  damages  for  tlie  non-perform- 


824  JUSTICES  OF  THE  PEi^CE— IV. 

ance  of  an  agreement.     Sto,fe  v.  Alexander,  4  Hawks,  182. 

15.  A  justice's  judgment  is  not  a  record,  and  does  not  provef 
itself;  it,  however,  resexnbles  a  record  in  the  particular,  that  its 
merits  are  not  examinaLle  in  another  suit,  and  an  action  of  as- 
sumpsit will  not  lie  on  it.     Hamilton  v.   IVnglit,  4  HaAvks,  283. 

IG.  A  sing-le  justice  has  no  jurisdiction  of  actions  founded 
upon  a  covenant  of  guaranty.  O'Dwyer  v.  Cutler,  1  Dev,,  312, 
S.  P.,  Adcock  V.  Fleriiing,  2  Dev.  and  i3at.,  225,  and  470. 

17.  Whether  the  seal  of  a  justice  is  necessar}'  to  a  valid  judg- 
ment is  doubtful,  but  the  want  of  it  cannot  be  objected  after  a 
verdict.     Himiphreys  v..  J?«?>,  1  Dev.,  378. 

18.  Debt,  and  not  assumpsit,  is  the  proper  remedy  against  the 
stayor  of  an  execution,  when  the  judgment  is  doi'nuuit,  and  it 
lies  against  him,  without  joining  tlie  principal.     Ibid. 

19.  A  justice  has  jnrisdicti(m  for  a  balance  due  on  an  execu- 
ted contract,  for  wliich  dt^ht  or  indeJnfafus  asumpsU  will  lie, 
but  he  cannot  give  damages  for  the  breach  of  an  executory  con- 
tract.     2)/er  V.  Harper,  I  Dev.,  387. 

20.  Where  the  defendant  covenanted  to  pay  a  certain  price 
per  hundred  for  carrying  goods,  and  to  deliver  a  certain  quanti- 
ty to  the  carrier,  but  dehvered  less,  it  7cas  held  that  a  justice 
had  no  juriscHction  as  to  that  part  of  the  contract  which  had 
not  been  perlormed.     Ibid 

21.  A  justice's  judgment  must  be  evidenced  by  a  written  me- 
morial made  at  the  time  of  rendition  ;  and  where  a  judgment  was 
confessed  before  a  magistrate  out  of  his  county,  and  an  entry  thereof 
made  on  the  warrant,  and  afterwards  a  new  conlession  was  had 
before  the  same  justice  within  his  county,  but  no  written  entry 
thereof  was  made,  and  no  alteration  of  the  date  of  the  old  entry, 
it  ivas  held  that  in  law  there  was  no  judgment.  Hamilton  v. 
ParrisJi,  1  Dev.  415. 

22.  One,  who  enters  himself  as  surety  for  the  stay  of  execu- 
tion, is  not  tJiereby  estopped  to  show  that  the  supposed  judg- 
ment is  a  mdlity.     Ibid, 

23.  A  levy  upon  land  under  a  justice's  judgment,  made  more 
than  three  months  after  the  date  of  the  execution,  is  void,  and, 
therefore,  a  sci.  fa.  against  heirs  founded  upon  it  was  dismissed. 
McEacMn  v.  McFarland,  1  Dev.  444. 

24.  A  single  justice  has  jurisdiction  of  implied  contracts; 
therefore,  where  upon  the  death  of  a  man  his  wife  appropriated 
money  belonging  to  his  estate  to  her  own  use,  it  ivas  held  that 
it  might  be  recovered  by  a  warrant,  without  proof  of  an  express 
promise  to  pay  it.     Ferrell  v.  Undericood,  2  Dev.,  111. 

25.  The  jurisdiction  of  a  single  justice  extends  to  all  cases 
where  a  general  indebitatus  as.wipsit  will  lie.     Ibid. 

26.  A  justice's  judgment,  "that  the  plaintiff  pay  costs,"  is-not 
a  judgment  on  the  merits,  because  it  may  be  upon  matter  col- 
lateral to  them.    E-videu-ce  of  what  the  justice  m^aut  by  sufih 


JUSTICES  OF  THE  PEACE— IV.  825 

judgment  is  improper,  as  the  entry  must  speak  for  itself;  but  it 
is  otherwise  as  to  the  fact,  whether  tlie  merits  were  enquired 
into  whun  the  judgment  Avas  rendered.     Ibid. 

27.  Where  one  promised  to  pay  a  debt  as  soon  as  he  had  col- 
lected certain  notes,  it  icas  held  that  a  single  justice  had  no 
jurisdiction  of  the  matter,  until  the  money  was  actually  received 
by  the  defendant  on  the  notes,  because  until  that  was  done  the 
only  remedy  for  the  plaintiiF  was  a  special  action  on  the  case 
for"^  neglect  in  making  the  collection.  Fentress  v.  JForth,  2 
Dev.,  221). 

28.  AVhere  the  plaintiff  has  an  election  to  sue  either  in  tort 
or  in  contract,  ho  cannot  maintain  assumpsit  u])on  an  implied 
contract  before  a  single  justice;  as  the  suit  niustbo  brought  in  a 
court  wlilch  has  jurisdiction  of  the  tort.  Clark  v.  D^q'ree,  2  Dev.  411. 

29.  In  reviewing  a  justices  judgment,  every  fact  necessary  to 
suppo]-t  it  is  to  be  taken  as  f  )ancl,  unless  the  contrary  appears. 
Hai7i'^s  V.  Dalfon,  3  Dev.  91. 

30.  A  justice  can  try  the  truth  of  any  plea,  which,  if  sustained, 
would  bar  the  action  witliin  his  jurisdiction.     Ihid. 

31.  The  judgment  of  a  justice  for  a  sum  above  his  jurisdiction 
is  void,  and  no  action  can  be  sustained  upon  it.     Jones  v.  Jones, 

3  Dev.,  oC){). 

32.  The  expression  "liquidated  accounts,"  as  explained  by  the 
act  of  1829,  means  "signed  accounts,"  and,  therefore,  where  A 
and  B  were  partners,  and  A  gave  his  own  note  for  a  debt  of  the 
firm,  and  B  wrote  a  letter  to  A  stating  that  he  would  pay  the 
debt  to  the  creditor,  it  zuas  held  that  the  account  was  not  thereby 
"liquidated"  as  against  B,  so  as  to  give  exclusive  jurisdiction  of 
the  demand  to  a  justice,  although  the  note,  letter  written  and 
action  brought  were  before  the  act  of  1829.      Wilson  v.  Jennings, 

4  Dev.,  90.     (See  Rev.  Code,  cli.  62.  sec.  G.) 

33.  An  account  for  a  sum  exceeding  sixty  dollars  must  be 
signed,  in  order  to  give  a  justice  jurisdiction  to  try  a  warrant  on  it 
for  money  '-due  by  account."     illcFarland  v.  Nixon,  4  Dev.,  141. 

34.  A  promise  by  A  to  pay  the  debt  of  a  third  person,  which 
was  less  than  sixty  dollars,  on  his  being  discharged  from  cus- 
tody, is  within  the  jurisdiction  of  a  justice,  though  the  debt  be 
payable  "in  trade.^      Cooper  v.  ChamLers,  4  Dev.  2(51. 

35.  .Justices  have  no  jurisdiction  beyond  sixty  dol'ars,  except 
when  the  debt  is  secured  by  a  bond,  note  or  liquidated  account, 
and  an  attachment  issued  by  and  returnable  before  a  justice, 
founded  upon  two  former  judgments  for  a  sum  not  exceeding 
that  amount,  is  voitL  and  is  no  justification  to  an  officer  acting 
under  it.     Bryan  v.   Washington,  4  Dev.,  479. 

36.  But  a  warrant  may  l)e  brought  before  a  justice,  and  the 
plaintift'  declare  on  his  old  judgment,  though  the  interest  ac- 
crued may  make  the  sum  due  on  the  old  judgment  more  than 
sixty  dollars.    Ibid.     (See  liev..  Code,  ch.  Q2,  sec,  6.) 


826.  JUSTICES  OF  THE  PEACE— IV. 

37.  A  justice  may,  under  the  act  of  1803,  postpone  a  cause 
pending  before  liim,  for  thirty  days,  excluding  Sundays.  Ship- 
man  V.  Mears,  4  Dev.  484.     (See  Rev.  Code,  ch.  62,  sec.  13.) 

38.  Upon  a  covenant  to  pay  $60  annually  for  two  years,  for  the 
hire  of  a  slave,  and  also  to  furnish  the  slave  with  food,  &c.,  deht 
may  be  brought  before  a  justice  for  one  year's  hire;  and  if  the 
warrant  call  ibr  that  sum  due  by  hoyid^  it  will  be  well  supported 
by  the  production  of  tJie  covenant.  Ilanillton  v.  McCarty,  1 
Dev.  &  Bat.,  )im. 

39.  The  act  of  1828,  which  enacts  that  a  justice's  execution 
shall  bind  personal  property  only  from  its  levy,  was  passed  only 
for  the  protection  of  purchasers  from  the  defendant  in  the  execu- 
tion, and,  therefore,  if  the  defendant  die  after  the  teste  of  such 
execution,  but  before  its  levy,  his  administrator  is  bound  there- 
by, and  the  goods  in  his  hands  may  be  levied  upon  and  sold 
without  a  scL  fa.  to  revive  the  judgment.  McCarson  v.  Eichard- 
son,  1  Dev.  &'Bat.,  561.     (See  Rev.  Code,  ch.  45,  sec.  20.) 

40.  A  single  justice  has  jurisdiction  of  a  contract  "to  pay  the 
sum  of  one  hundred  bushels  of  corn,"  and  the  warrant  is  suf- 
ficient, if  it  be  "to  answer,  &c.,  of  a  plea  of  debt,  the  sum  oi  one 
hundred  bushels  of  corn."  H  imilton  v.  Jervis,  2  Dev.  and  Bat, 
227. 

41.  A  plaintifi'  may  warrant  upon  any  demand  of  v/hich,  in 
terms,  jurisdiction  has  been  given  to  a  single  justice,  although 
the  investigation  of  the  demand  may  lead  to  enquiries  into  sub- 
jects, of  wliich  direct  jurisdiction  has  not  been  given.  Adcock 
v.  Fleming,  2  Dev.  and  Bat.,  470. 

42.  The  term  " book  account,"  may  comprehend  a  "signed" 
account,  as  well  as  an  open  one ;  and  where  the  judgment  of  a 
single  justice  appears  to  have  been  given  on  a  warrant  for  more 
than  sixty  dollars,  "due  by  book  account,"  it  is  to  be  taken  in 
support  of  the  justice's  jurisdiction,  that  the  book  account  was  a 
signed  account.  Turner  v.  Edioards,  2  Dev.  and  Bat.,  539. 
(See  Rev.  Code,  ch.  Cy2,  sec.  6.) 

43.  Where  an  execution  upon  a  justice's  judgment  is  levied 
upon  land,  and  returned  to  tlie  county  court,  under  the  act  of 
1794,  it  is  essential  to  the  validity  of  the  order,  which  the  court 
is  authorised  to  make,  to  sell  the  land  levied  on,  that  the  land 
should  be  particularly  described;  and  a  levy,  in  general  terms, 
upon  the  defendant's  "lands,"  without  further  specification  or 
description,  will  not  support  such  order,  nor  the  sale  made  un- 
der it.  Borden  v.  Smith,  3  Dev.  and  Bat.,  34.  (See  Rev.  Code, 
ch.  62,  sees.  16  and  17.) 

44.  Where  an  execution  upon  a  justice's  judgment  is  levied 
upon  land,  and  returned  to  the  county  court,  and  it  appears  that 
the  defendant  has  not  had  five  days  notice,  in  writing,  as  re- 
quired by  the  act  of  1828,  the  court  has  no  power  to  order  a  sale 
of  the  land  levied  upon,  and  any  such  order  will  be  entirely  null, 


JUSTICES  OF  THE  PEACE— IV.  827 

unless  tlie  defendant  appears  and  waives  notice.     Ih'id.     (See 
Rev.  Code,  eh.  45,  sec.  24.) 

45.  Where  a  justice's  execution  has  been  levied  npon  land  and 
returned  to  the  county  court,  the  plaintiff'  may  apply  to  that 
court,  and  have  a  judgment  there  rendered  in  his  behalf  for  the 
sum  recovered  before  the  justice,  and  for  costs,  under  the  act  of 
1822,  and  it  seems  that  a  vend.  expo,  may  issue  upon  such  judg- 
ment to  sell  the  land  levied  on,  Avith  a  special  fi.  fa.  to  levy  gen- 
erally for  any  unsatistied  balance  of  such  judgment;  but  the 
power  of  the  court  to  render  such  judgment,  and  issue  a  ft.  feu 
thereon,  depends  upon  the  fact  whethe'r  a  levy  sufficiently  spe- 
cial has  been  made,  and  also  whether  the  defendant  has  had  five 
daj-s'  notice  in  writing  before  court,  or  has  waived  it,  and  if  no 
such  judgment  has  been  rendered,  a  writ  to  the  sheriff  command- 
mg  him  to  sell  the  land  levied  on  cannot  have  the  effect  of  a  fi. 
fa.     Ihiil.  (See  Rev  Code,  ch.  45,  sees.  12  and  13.) 

46.  A  person  having  an  account  against  another,  for  work  and 
labor  done,  may  give  the  other  credit  for  such  sums  as  mav 
be  justly  due  him  on  account,  and  if  the  bal.-iuce  be  thereby  re- 
duced below  sixty  dollars,  may  warrant  for  it  before  a  single  jus- 
tice,_and  the  other  party  can  neither  object  to  the  jurisdiction, 
nor  insist  upon  having  his  account  of  the  same  items  allowed  as 
a  set  off  to  the  plaintiff's  demand.  3IcRae  v.  McFuie,  3  Dev.  and 
Bat,  85, 

47.  Justice's  executions  are  by  law  returnable  m  three  months 
from  their  date,  but  it  is  not  necessary  that  they  should  be  re- 
turned on  the  last  day  of  the  three  months.  They  may  be  re- 
turned sooner  and  aliases  taken  out  and  acted  upon  '  Tslay  v 
Steivart^  4  Dev.  and  Bat.,  ](iO.      (See  Rev.  Code,  ch.  (J2,  sec.  10.) 

4:8.  The  signature  of  a  justice  is  absolutely  necessary  to  an 
alias,  as  well  as  to  an  original  execution  on  a  justice's  judgment. 
•Hence  an  entry  of  "  execution  renewed,"  without  the  signature 
of  a  justice,  at  the  foot  of  a  dormant  justice's  execution,  gives  no 
authority  to  the  acts  of  an  officer  under  it.  Uicnins  v  Ketchiim 
4Dev.  and  Bat.,  414. 

49.  The  levy  of  a  justice's  execution  upon  lands,  under  tlie  act 
of  1794,  need  not  perhaps  be  in  the  very  words  of  the  act;  but  a 
description  containing  a  part  only  of 'that  prescribed  in  the  ad 
must  be  taken  to  be  insufficient  in  point  of  the  certainty  thereby 
required,  until  it  is  shown  as  a  fact  that  it  identified' the  land 
levied  on,  as  effectually  as  it  would  have  been  identified  by  a  de- 
scription conforming  to  that  given  in  the  act.  Hence,  a  levy 
"on  all  the  lands  of  the  defendant  Iving  on  Queen's  creek," 
without  any  such  evidence  of  identitv,  is  not  sufficiently  specific 
to  authorize  the  court  to  make  an  order  of  sale,  or,  if  such  order 
be  made,  to  support  a  sale  under  it.  Ibid.  (See  Rev.  Code, 
ch.  Q2,  sec.  IG.)  \  ■> 


828  JUSTICES  OF  THE  PEACE— IV. 

50.  The  levy  of  a  justice's  execution  upon  "all  the  lands  of 
the  defendant,  lying  on  the  head  waters  of  Ketchum's  mill  pond, 
adjoining  the  lands  of  the  said  Ketchum,"  is  substantially,  if  not 
literally,  a  compliance  with  the  requisitions  of  the  act  of  1794. 
Ibid. 

51.  If  a  justice's  execution  be  levied  upon  land  and  returned 
to  court,  and  the  land  be  sold  under  a  vend,  r-xpo.,  issued  uj)on  an 
order  made  by  the  court  for  that  purpose,  the  lien   has  relation 
back  to  the  time  of  the  levy,  so  as  to  defeat  a  sale  made  after-^ 
wards  by  tlie  defendant.     Ihid. 

52.  A  justice's  judgment,  apparently  regular,  cannot  be  col- 
laterally impeached  by  evidence  that  the  constable,  by  whom  the 
warrant  purported  to  have  been  executed,  was  a  liian  of  gen 
eral  bad  character,  and  not  to  be  tiustcd  in  any  thing  he  might  say 
or  do,  or  by  any  other  parol  evidence  to  show"thatthe  warrant  had 
not  in  fact  b^en  executed.  It  is  a  juilicial  proceeding  which  ia 
conclusive,  unless  upon  some  other  proceeding  directly  to  avoid 
it.     Jones  v.  Jixlliuf,  4  Dev.  aud  Bat.,  454. 

5?.  When  the  proceedings  before  a  justice,  upon  which  he  is- 
sues an  execution,  are  annexed  to  the  execution,  and  it  is  ap- 
parent from  them  there  is  no  judgment  authorizing  an  execu- 
tion, the  constable  who  has  the  execution  must  take  notice  of 
that  fact,  and  will  be  guilty  of  a  trespass,  if  he  proceed  to  make 
a  levy  under  the  process.      WMffidd  v.  Johnston,  1  Ired.,  473. 

54.  Where  one  owes  a  debt,  by  note,  of  more  than  one  hun- 
dred dollars,  and  gives  in  lieu  thereof  two  or  more  notes,  each.' 
of  less  than  that  amount,  to  the  intent  that  judgments  may  be 
taken  thereon  before  a  justice,  this  is  neither  a  fraud  or  evas- 
ion of  the  statute,  prescribing  the  jurisdiction  of  justices  out  of 
court.     Fortescu".  v.  Spencer,  2  Ired.  (33. 

55.  The  description  of  the  land  levied  on  by  a  constable  un- 
der a  justice's  execution  ought  to  conform  to  the  words  of  the 
statute,  though  it  will  be  sufficient  if  it  distinguishes  and  inden- 
tifies  the  land  levied  on.  SmiUc-y.  Lou.\  2  Ired.  457.  (See  Eev. 
Code,  ch.  f)2,  sec.  IG.) 

56.  Judicial  proceedings  before  a  justice  are  conclusive  in 
their  effects,  but  they  do  not  prove  themselves  like  records,  and 
parol  evidence  mav  be  introduced  to  prove  that  they  are  void. 
CarroU  v.  McGee,  3  Ired.,  13. 

57.  If  a  constable,  in  returning  to  court  a  levy  on  land,  does 
not  describe  it  as  required  by  the  statute,  a  purchaser  under  a 
vend.  expo,  issued  by  the  court,  in  order  to  support  a  title  in  a 
trial  at  law,  must  show  by  extrinsic  evidence,  that  the  return 
does  as  completely  identify  the  land  as  it  would  have  been  iden- 
tified by  a  literal  observance  of  the  statute.  Blanchard  v.  Blanch- 
ard,  3  Ired.,  105. 

58.  When  an  officer  has  levied  a  ju.stice's  executio  i  on  land 
and  returned  it  to  court,  his  raturn  of  a  copy  of  the  notice  given 


JUSTICES  OF  THE  PEACE— IV.  829 

to  the  defendant,  with  his  official  certificate  that  he  has  served 
it,  is  sufficient  'prima  feme  evidence  of  such  service.  And  it  is 
hot  necessary  that  the  court,  in  making  an  order  for  the  sale  of 
land  so  returned  as  levied  on  by  the  constable,  should  set  forth 
that  the  notice  had  been  proved  to  them  to  have  been  previous- 
ly given.     Davis  v.  Abbott,  3  Ired.,  137. 

59.  A  county  court  cannot  order  a  vend.  expo,  upon  the  return 
taf  a  levy  on  land  under  a  justice's  execution,  unless  it  also  ap- 
pears on  the  return  that  there  were  no  goods io  be  levied  on;  nor 
when  it  appears  on  the  retiu'n  that  goods  were  levied  on,  but 
not  a  sufficiency  ot  them  to  satisfy  the  execution,  and  it  does 
not  appear  how  those  goods  were  disposed  of.  Hensliaw  v. 
Branson,  3  Ired.,  298. 

60.  Where  a  justice  has  jurisdiction  of  the  principal  ques- 
tion, as  on  a  contract  to  pay  for  certain  articles,  he  has  also  the 
jurisdiction  to  determine  every  incidental  question,  as  for  in- 
stance, whether  the  condition  upon  which  xhe,  contract  was  to 
be  executed  has  been  performed.     Garrett  v.  Shaic,  3  Ired.,  395. 

61.  Executions  from  justices  are  entitled  to  priority,  as  be- 
tween themselves,  according  to  the  time  at  which  they  came  to 
the  officer's  hands.  And  if  tlie  officer  neglect  to  levy  first  an 
execution  from  a  justice  which  first  comes  to  his  hands,  he  and 
his  sureties  are  liable  to  the  creditor  having  such  execution. 
State  V.  Vide,  3  Ired.,  488. 

62.  Where  a  constable  returned  on  an  execution  against  A  B, 
"levied  on  land  supposed  to  be  upwards  of  100  acres,  where 
Richard  Heath  lives  on — no  other  propeity  to  be  found,"  and  it 
appeared  in  evidence  tliat  A  B  had  two  tracts  of  laud  in  the 
county,  each  of  about  100  acres,  on  one  of  which  lie  lived  him- 
self, and  on  the  other  James  Heath  lived,  and  that  the  latter  was 
known  as  the  land  of  A  B  on  which  James  Heath  lived,  it  lOas 
held  that  the  want  of  certainty  in  the  description  of  the  land 
levied  on  was  not  aided  by  the  parol  evidence,  and  that  the  party 
claiming  by  purchase  at  a  sale  nuide  under  that  levy  acquired  no 
title.     Morriseij  v.  Love,  4  Ired.,  38. 

63.  AVhere  the  identity  of  land  levied  on  by  a  constable,  with 
that  claimed  under  a  piii-chase  under  that  levy,  is  sought  to  be 
established  by  parol  evidence,  the  enquiry  is  olie  of  fact  for  the 
jury  and  not  of  law  for  the  court.     Hid. 

64.  Any  irregnlarity  in  the  return  of  a  justice's  execution 
levied  on  land,  as  tliat  it  was  not  returned  to  the  next  court,  or 
that  the  persoual  property  was  not  exhausted,  or  any  error  of  the 
court  in  ordering  a  sale  of  the  land,  Avhen  the  personal  property 
levied  on  has  not  been  exhausted,  can  only  be  objected  to  by  the 
defendant  in  the  execution.     Whitalrr  v.  Felvay,  4  Ired.,  182. 

65.  Where  the  execntionof  a  justice  is  on  the  same  paper  with 
the  judgment,  it  must  be  taken  to  refer  to  the  judgment,  and  is 
thus  made  certain  as  to  the  debt,  interest  and  cdsts,  and  as  to  the 
person  who  recovered  the  same.     McLean  v.  Paul,  5  Iicd,  22. 


30   ■  JUSTICES  OF  THE  PEACE— ly. 

6(^.  Where  the  levy  of  a  justice's  execution  was  "on  450  acres- 
land,  adjoining  the  land  of  A,  B  and  C,"  the  court  cannot  see  any 
objection  to  the  levy  on  its  face,  and  cannot,  without  further 
evidence,  say  that  the  land  was  not  sufficiently  identified  under 
the  act.     //;/(/. 

67.  Upon  the  return  of  a  justice's  execution  levied  on  land,  the 
awarding  oi  the  vend.  expo,  or  order  of  sale  imports  that  notice 
has  been  given  to  the  defendant  in  the  execution,  and  esjiecially 
is  this  so  when  the  court  expressly  declares  that  such  notice  has 
been  given;  and  this  is  sufflcient  to  be  shown  by  the  purchaser 
under  the  exocution  in  an  action  of  ejectment,  for  parol  evidence 
could  not  be  admitte;!,  in  such  action,  to  show  that  the  defendant 
iu  the  justice's  execution  had  notice  of  the  levy  on  his  land.     Ibid. 

68.  A  single  justice  has  jurisdiction  of  debts,,  though  above 
sixty  dollars,  if  founded  on  a  former  justice's  judgment.  Mor- 
gan V.  Allen,  5  Ired.,  156. 

69.  Where  a  justice  gives  a  judgment  against  a  defendant,  for 
a  sum  beyond  his  jurisdiction,  the  defendant  may  have  an  a(;tion 
for  any  acts  done  under  it,  or  he  may  resort  to  a  writ  of  false 
judgment,  to  have  it  set  aside.  If  he  choose  to  appeal  to  the 
county  court,  he  can  there  take  advantage  of  the  objection  only 
by  plea  in  abatement,  or,  according  to  the  established  course  of 
our  courts,  under  the  general  issue.     Ibid. 

70.  When  an  execution  from  a  justice  has  been  levied  on  per- 
sonal property,  and  is  afterwards  stayed  according  to  law,  the 
levy  is  released,  and  the  awner  may  sell  the  property  to  whom 
he  pleases.     Hnrnilton  v.  Henry,  5  Ired.,  218. 

71.  An  execution  from  a;-  justice  was  issued  against  a  defend- 
ant in  his  lifetime,  and  after  his  death,  and  before  the  return 
day  of  the  execution,  it  was,  for  want  of  chattels,  levied  o]i  lands,, 
the  levy  returned  to  the  county  court,  and,  after  due  notice  to 
the  heirs,  the  court  ordered  the  lands  to  be  sold,  and  that  a  vend. 
eajpo.  issue  for  that  purpose:  held  that  the  levy  was  good  and 
the  proceeding  regular,  and  that  when  the  sale  took  place,  it 
should  have  relation  back  to  the  levy,  and  the  proceeds  should 
be  applied  to  that  execution,  in  preference  to  executions  subse- 
quently issued  from  a  court  of  record,  on  a  judgment  against  the 
heirs  upon  a  sci./a.     Parish  v.  Turner,  5  Ired.,  279. 

72.  Where  a  party  is  dead,  at  the  time  of  the  levy  on  lands 
under  a  justice's  execution,  notice  to  his  heirs  is  as  effectual  as 
if  given  to  the  party  himself,  when  living.     Ibid. 

73.  A  justice's  warrant,  in  a  civil  case,  was  dated  June,  1843^ 
the  judgment  in  June,  1844',  and  the  execution  in  September, 
1844,  the  judgment  and  execution  being  on  the  same  paper 
with  the  Avarrant:  he'd  that  it  did  not  appear  on  the  face  of 
tliese  proceedings  that  the  judgment  was  void,  so  as  to  render 
the  officer  who  served  the  execution,  guilty  of  a  trespass.  State 
V.  Conolhj,  6  Ired.,  243. 


JUSTICES  OF  THE  PEACE— IV..  •  831 

74.  If  the  judgment  conld  be  reversed  by  a  writ  of  false  judg- 
ment, yet  it  eonld  not  be  impeached  collaterally.     Ibid. 

75.  A  justice  has  no  jurisdiction  of  a  question  of  guaranty. 
Wall  V.  Nelson,  6  Ired.,  3<)0. 

76.  In  the  case  of  the  return  of  the  levy  of  a  justice's  execu- 
tion on  land  to  the  county  court,  though  notice  is  directed  by 
law  to  be  given  to  th-e  defendant,  no  evidence  is  required  of  that 
notice  b\it  the  record  oi  the  county  court  ordering  the  vend, 
expo.      Wa  d  v.  Samiders,  6  Ired.,  o82. 

77.  The  description,  in  the  return  of  a  constable,  of  a  levy  on 
land,  need  not  literally  comply  with  the  act  of  Assembly  in  such 
cases,  its  requirements  being  substantially,  that  the  land  should 
be  sufficiently  distinguished  and  identified.     Ibid. 

78.  An  account,  though  signed  by  the  defendant,  is  not  a 
liquidated  accouiit.  so  as  to  give  a  justice  jurisdiction  of  it,  when 
over  $()0  and  under  $100,  when  it  does  not  show  on  its  face  to 
whom  it  is  due,  nor  thnt  it  is  a  settled  account  between  the  par- 
ties. Midjtty.  (ro7.vo»,  7Ired.,  143.  (See  Rev.  Code,  ch.  (i2,  sec.  6.) 

79-  A  liquidated  account,  under  the  act,  means  oiie  in  which 
the  debt  is  adjusted,  and  the  balance  stated,  without  the  neces- 
sity of  having  recourse  to  extrinsic  evidence.     Ibid. 

80.  Where  a  return  of  a  levy  on  land  by  a  constable  conforms 
in  its  description  to  the  act,  setting  forth  among  other  things 
that  the  hind  lies  on  a  creek,  naming  it,  and  it  appears  that  there 
are  several  creelcs  in  the  county  of  that  name,  it  is  competent 
for  a  party  to  an  ejectment  suit  brought  To  recover  the  land  sold 
under  that  levy,  to  show  which  creek  was  intended  when  the 
levy  was  made.  PavlxS  v.  Blason,  7  Ired.,  362.  (See  Rev.  Code, 
ch.  ^2,  sec.  IG.) 

81.  Where  a  judgment  was  rendered  by  a  justice  upon  a  re- 
turn of  the  constable  on  the  warrant  "  exet;uted,"  but  not  hav- 
ing the  name  of  the  constable  signed  to  the  return,  it  teas  held 
that  this  judgment  was  not  void  for  the  want  of  the  constable's 
signature.     BIcElrath  r.  Buder,  7  Ired.,  3!  8. 

82.  Where  a  judgment  was  obtained  su.bsequently,  upo^n  the 
judgment  mentioned  in  the  last  section,  it  loas  held  that  the  de- 
fendant could  not  be  relieved  from  the  last  judgment  by  wait  of 
recordori,  without  first  having  theprior  judgment  reversed.    I  bid. 

83.  A  justice's  judgment,  though  not  matter  of  record,  deter- 
mines between  the  parties  their  respective  rights  in  the  matter 
of  coutrovers}';  and  neither  party  can,  in  a  subsequent  pi'oceed- 
ing  to  enforce  it,  deny  or  con  test 'the  matters  of  fact  ascertained 
by  it.  Therefore,  _  a  detendant,  who  is  sued  upon  a  judgment 
obtained  before  a  justice,  has  no  right  to  plead  that  lie  was  an 
infant  when  that  judgment  was  rendered.  L/idwick  v.  Fair  7 
J  red.,  422. 

84.  The  officer  making  a  levy  on  land,  under  an  execution  from  a 
justice,  must  make  his  return  of  the  land  leA'ied  on,  on  the  judg- 


832  .  JUSTICES  OF  THE  PEACE— IV, 

ment  and  execution,  when  tliey  are  on  one  and  the  same  papefj 
or  on  the  execution  when  they  are  on  different  ones,  or  on  some 
paper  annexed  to  the  one  or  tne  other,  and  which  would  consti* 
tute  a  part  of  it,  and  have  to  be  recorded  with  it;  otherwise  a 
sale  made  under  the  execution  will  be  void.  Dickson  v.  Peppers, 
7  Ired.,  429. 

85.  Where  a  warrant  was  issued  against  three,  and  returned 
"executed,"  and  the  judgment  was  entered  against  the  "  defen- 
dant "  in  tlie  singular  number,  and  so  was  also  the  entry  of  the 
stay  of  execution,  and  especially  where  the  justice  who  rendered 
the  judgment  was  himself  a  party  defendant,  it  loas  held  that,  in 
another  warrant  against  one  of  the  defendants  on  the  original 
cause  of  action,  the  plea  of  former  judgment  could  not  be  sup" 
ported,  because  it  could  not  be  shown  that  the  former  judgment 
was  against  him.     Thornasv.  Holcomhe,  7  Ircd.,  445. 

86.  A  justice  has  no  jurisdiction  of  such  a  contract  as  the  fol- 
lowing: "  I,  the  subscriber,  promise  H.  S.,  that  if  he  can  make 
it  appear  that  I  had  in  my  hands  as  constable,  for  collection, 
three  notes  for  $75  each,  in  favor  ot  the  administrators  of  S.  S., 
deceased,  against  J.  S.  and  others,  and  endorsed  by  13.  B.,  then, 
and  on  that  evidence,  I  am  to  stand  indebted  to  him.  li.  S.,  for 
one  of  said  notes,  and  interest  thereon  from  April  2()th,  1842." 
Spevcer  v.  limisudccr,  8  Ircd.,  9. 

87.  One,  against  whoma  justice's  judgment  has  been  obtained, 
cannot  attack  that  judgment  collaterally,  on  the  ground  that  he 
was  not  duly  served  wilh  process,  or  notified  of  the  day  and  place 
of  trial:  but  to  avail  himself  of  these  objections  he  must  impeach 
the  judgment  directly,  by  application  to  the  ju^stice  or  to  a  high- 
er tribunal,  to  set  it  aside  or  to  reverse  it.  Hools  v.  Biases,  8 
Ired.,  88. 

88.  The  jurisdiction  of  a  single  justice  extends  to  all  cases  for 
the  recovei-y  of  money,  Avhen  the  amount  is  within  the  sum  des- 
ignated in  the  act,  when  a  general  indclAtdlns  assmvpsit  will  lie, 
whether  the  contract  is  express  or  implied  in  law.  Kitchell  v. 
Wallxr.  8  h-jd.,  243.     (See  Kev.  Code,  ch.  ()2,  sec.  0.)  _ 

89.  Where  an  execution  from  a  justice  has  been  levied  on  land 
and  returned  to  the  county  court,  where  judgment  is  rendered 
for  the  plaintilf,  he  may  either  have  an  order  of  sale,  under 
which  he  can  only  sell  the  land  levied  on,  or  he  may  take  out  an 
execution  as  in  other  cases  of  judgment.  If,  however,  he  take 
an  order  of  sale,  he  may  add  a  special  f.  fa.  to  the  vend,  expo^ 
Poivellv.  Bavcjham,  9  Ired.,  153. 

90.  If  the  jury  can  collect  from  the  testimony,  that  the  descrip- 
tion of  land  levied  on  by  a  constable  under  a  justice's  execution 
as  fully  identifies  it,  as' if  the  words  of  the  act  of  assembly  had 
been  literally  followed,  the  levy  must  be  pronounced  to  be  good. 
Jones  V.  Austin,  10  Ired.,  20. 

91.  Where  the  return  of  a  constable  of  a  levy  on  land,  under  a 


JUSTICES  OF  THE  PEACE— "IV.  8S3 

justice's  execution,  does  not  state  that  there  was  a  M^ant  of  goods 
and  chattels,  and  the  county  court  directs  a  venc/.  exjm.,  the  court 
must  be  presumed  to  have  acted  right;  to  have  acted  upon  a 
•waiver  of  the  search  f<n-  goods  and  chattels.     Ihld. 

92.  A  note  for  seventy  dollars,  payable  in  current  bank  notes, 
1;hough  not  negotiable,  is  within  tlie  jurisdiction  of  a  justice. 
■State  V.  Corper^ning,  10  Ired.,  58. 

93.  A  justice,  before  whom  a  warrant  is  tried,  is  not  permitted 
to  sign  the  name  of  a  surety  to  the  stay  of  execution,  even 
though  the  person,  whose  name  is  signed,  afterwards  assents  to 
it  and  pays  the  judgment.     Bickmanv.  Williams,  10  Ired.,  126. 

94.  It  seems  tliat  no  one  but  the  surety  himself,  or  one  for 
liim  in  his  presence,  can  sign  his  name  to  the  stay  of  a  justice's 
■execution.     Ihid. 

95.  Where  a  surety  signs  a  stay  of  a  justice's  execution,  witli- 
out  any  request  from  the  principal,  and  afterwards  pays  it,  it  is 
a  mere  voluntary  payment,  and  gives  him  no  cause'^  of  action 
-against  the  principal.     Ibid. 

96.  WJiere  a  principal  gave  his  surety,  for  his  indemnity,  a  lien 
on  some  hogs,  which  the  principal  afterwards  sold  to  a  third 
perscm,  and  the  surety  refused  to  deliver  the  hogs  unless  the 
purchaser  agreed  to  pay  the  debt  for  which  he  was  bound,  and  the 
purchaser  agreed  to  do  so,  but  failed,  and  the  surety  had  fo  pay 
the  debt  himself;  it  was  held  that  a  justice  liad  no  jurisdiction  of 
-J- suit  by  the  surety,  to  recover  the  money  from  the  purchaser  of 
the  hogs.      Ca  le  v.  Hamilton,  11  Ired.,  231. 

97.  Wlien  a  justice  renders  a  judgment  in  a  case  where  he 
has  jurisdiction,  every  thing  is  ju-esumed  to  have  been  done, 
which  it  was  necessary  to  do  to  make  the  judgment  regular; 
iiud  his  judgment,  like  one  given  in  a  court  of  record,  is  in  full 
force  until  reversed.     Hiaft  v.  Simpson.,  13  Ired.,  72. 

98.  To  authorize  a  sale  of  hunl  by  order  of  the  county  court, 
there  nmst  have  been  a  levy  of  the"^execution  issued  by  the  jus- 
tice; and  proof  by  the  officer,  tljat  he  adopted  the  levies  endors- 
ed on  the  executions,  before  issued  on  the  same  judgments,  and 
that  he  con>>idered  them  as  his  levies,  is  insufficient.  In  such  case 
the  court  had  no  power  to  make  the  order  of  sale,  and  its  pro- 
ceeding was  a  nullity.     Brazier  v.  Thomas-,  Busb.,  28. 

99.  The  penalty  of  $100  imposed  by  the  act,  Rev.  Stat.,  eh. 
34,  sec.  73,  to  be  paid  to  the  owner  for  harl)oring  a  runaway 
slave,  is  not  within  the  jurisdiction  of  a  single  ju.stice.  Branch 
v.  Hoaslou,  Biisb.,  S5.     (See  Rev.  Code,  ch.  34,  sec.  92.) 

100.  Where  jurisdiction  is  Avithheld  l)y  law,  a  plea  in  abate- 
inent  need  not  Ijc  put  in,  as  a  court,  of  if^  oicn  mUion,  will  stay- 
its  action  in  such  case      Ibid. 

101.  Where  the  payee  of  a  bond  untruly  endorsed  thereon  a 
payment,  for  the  purpose  of  bringing  the 'amount  within  a  jus- 
tice's jurisdiction,  upon  a  suit  being  brouglit  before  a  justice,  U 

11* 


834  JUSTICES  OF  THE  PEACE— IV. 

was  held  to  be  a  fraud  upon  the  law,  and  a  plea  in  abatement 
could  be  sustained.     Moore  v.  Thomson,  Busb.,  221. 

102.  Where  one,  who  had  appealed  from  the  judgment  of  a 
justice,  countermanded  the  appeal,,  and  at  his  request  the  justice 
withheld  it,  it  loas  held  that  the  judgment  was- reinstated  in  full 
force,  and  would  maintain  a  suit  founded  thereon,  and  this,  al- 
though the  appeal  was  countermawded  upon  an  agreement  of 
the  opposite  party  to  refer  the  M'hole  matter  to  arbitration,  which 
agreement  he  had  violated.     Sturgill  v.  Thompson,  Busb.,  392. 

103.  A  justice's  judgment  on  a  warrant  against  an  adminis- 
trator, ascertaining  the  amount  due,  and  having  endorsed  there- 
on a  suggestion  of  the  defendant's  intention  to  plead  "  no  as- 
sets," according  to  the  act,  Eev.  Stat.,,  ch.  46,  sec.  25,  is  not  a 
final  judgment,  and  no  action  will  lie  upon  it.  Anderson  v. 
Young,  Busb.,  408.     (See  Rev.  Code,  ch.  46,  sec.  35.) 

104.  A  term  for  years  in  land  is  liable  to  a  \Qyj  and  sale  by  a 
constable  imder  a  justice's  execution.  Glenn  v.  Peters,  Busb., 
457.  (If  the  lease  be  of  three  years'  duration,  the  constable's 
levy  must  now  be  returned  to  court  as  in  case  of  a  levy  on  a 
freehold.     See  Rev.  Code,  ch.  45,  sec.  3.) 

105.  A  sealed  note  for  more  than  sixty  dollars,  signed  by  one 
of  two  partners,  cannot  be  given  in  evidence,  as  "an  account 
stated,"  by  the  partner  who  did  not  sign  it,  so  as  to  sustain  a 
warrant  against  him  upon  it  before  a  single  justice.  Heath  v. 
GreA.ory,  1  Jones,  417. 

106.  Although  a  person  may  waive  a  tort  so  as  to  be  able  to 
sue  in  assumpsit  in  certain  cases,  yet  no  new  jurisdiction  can  be 
thereby  acqmred,  so  as  to  give  a  single  justice  the  power  of  try- 
ing the  case;  for  the  rule  is,  that  where  the  plaintiff  has  the  elec- 
tion to  sue  either  in  tort  or  contract,  no  court  can  have  jurisdic- 
tion of  tlie  action  of  assumpsit  but  one  which  can  give  a  remedy 
on  the  tort  itself,  as  the  same  questions  of  law  arise  in  each. 
Mann  v.  Kendall,  2  Jones,  192. 

107.  Where  an  account  consisted  of  several  items,  the  aggre- 
gate of  which  exceeded  sixty  dollars,  it  was  held  that  the  plain- 
tiff might  omit,  or  give  credit  for  as  many  items  as  he  chose,  so- 
as  to  bring  the  case  within  the  jurisdiction  of  a  single  justice^ 
but  that  tliis  could  not  be  done  where  there  was  but  a  single 
item,  which  amounted  to  more  than  sixty  dollars.  Waldo  v.. 
JtVij^  4  Jones,  173. 

108.  Under  the  book  debt  law,  in  which  the  plaintiff  has  to- 
swear  that  the  account  contains  a  true  account  of  all  the  dealing, 
he  cannot  give  a  justice  jurisdiction  by  omitting  some  of  the 
items.     I  hid. 

109.  A  levy  on  land,  endorsed  on  a  justice's  execution  and  re- 
turned to  court  in  the  following  words,  "  levied  on  three  tracts 
of  land,  containing  three  hundred  acres  on  Caney  Fork,"  is  not 
sufficiently  definite  to  comply  Avith  the  requisites  of  the  act  of 


JUSTICES  OF  THE  PEACE— IV.  835 

assembly.  Nor  can  it  be  made  so  by  proof  of  facts  collateral  to 
the  description  contained  in  the  levy.  CLaAen  v.  FhilUps,  4 
Jones,  4M>. 

110.  Where  a  justice's  judgment  is  appealed  from,  and  before 
the  appeal  is  r(>turned  to  court  the  parties  agree  to  withdraw  it, 
the  judgment  is  restored.     Matliis  v.  Bryson,  4  Jones,  508. 

111.  A  deputy  sheriff,  having  a  justice's  execution  in  his  hands, 
levied  it  on  certain  articles  of  personal  property,  and  upon  the 
defendant's  land,  and  sold  some  of  the  articles  of  personal  prop- 
erty and  properly  applied  the  proceeds,  and  as  to  the  rest  re- 
turned that  they  were  not  sold  for  want  of  bidders,  being  claimed 
by  dififerent  members  of  the  defendant's  family.  The  office  of 
the  high  sheriff  having  expired,  tlie  deputy  as  deputy  of  the 
new  sheriff,  before  the  return  day  of  the  execution,  made  an  en- 
dorsement on  it  that  the  levy  was  "renewed,"  and  retm-ned  it 
with  both  endorsements  to  the  county  court,  where,  after  notice 
to  the  defendants,  an  order  of  sale  was  made,  and  it  was  held 
that  the  order  was  proper,  and  a  sale  under  it  good;  Tysor  v. 
Short,  5  Jones,  279. 

112.  To  antedate  a  credit  on  a  note,  so  as  to  reduce  the  amount 
of  it  to  a  sura  within  the  jurisdiction  of  a  justice,  is  in  evasion  of 
the  law,  and  the  jurisdiction  may  be  ousted  by  a  plea  in  abate- 
ment.    Eamsour  v.  Barrett,  5  Jones,  409. 

113.  Where  the  judgment  of  a  justice  is  susceptible  of  two 
constructions,  that  is,  whether  it  was  intended  as  a  judgment  in 
the  defendant's  favor  on  the  merits,  or,  simply,  for  the  costs,  as 
in  case  of  a  nonsuit,  it  is  proper  to  hear  evidence  in  explanation. 
Carr  v.   Woodletf\  6  Jones,  400. 

114.  Where  the  entry  made  by  a  justice  trying  a  warrant  on 
a  former  judgment  Avas,  "dismissed  at  the  plaintiif's  costs,"  and 
in  explanation,  the  justice  testified  that  on  the  trial  before  him, 
the  judgment  sued  on  was  produced  and  considered  by  him,  and 
he  believing  that  it  was  vacated  by  the  entry  of  an  appeal  which 
he  saw  on  it,  made  tlie  above  mentioned  entry,  which  he  intended 
to  be  final  between  the  parties;  it  ivas  held  that  if  this  testimony 
were  true,  it  showed  that  the  judgment  was  on  the  merits  and 
was  conclusive.     Ibid. 

115.  An  acknowledgment  by  a  person  as  surety  fu-  the  stay  of 
a  justice's  execution,  taken  by  a  justice  in  the  absence  of  the 
judgment,  entered  on  a  separate  piece  of  paper  and  signed  by 
the  proposed  surety,  is  invalid,  and  no  execution  can  be  issued 
against  such  person  so  signing  as  surety.  Murray  v.  Edmonston, 
6  Jones,  515. 

IIG.  Where  a  justice's  warrant  was  dated  of  a  certain  day, 
and  execution  dated  of  the  same  day  with  the  warrant,  a  judg- 
ment on  the  same  piece  of  paper  with  them,  but  not  dated,  was 
held  to  be  sufficiently  certain  as  to  the  time  of  its  rendition.. 
Clayton  v.  Fulp,  7  Jones,  441. 


836  JUSTICES  OF  THE  PEACE-IV-V-VT. 

117.  Where  A  agreed  to  let  B  put  a  saw  mill  and  houses  and 
fixtures  on  his  land  for  the  purpose  of  sawing  lumber,  -'as  long 
as  he  wished,"  he  having  the  right  to  taive  way  his  improve- 
nienta,  it  was  held,  that  B  had  an  interest  for  life  in  the  easement 

,  on  the  land  necessary  to  the  milhng  business,  determinable,  how- 
ever, sooner  at  his  option,  and  that  his  interest  in  theniill,  houses 
and  easement  on  the  land,  was  not  liable  to  be  sold  by  a  consta- 
ble under  an  execution  from  a  justice's  judgment,  without  a 
return  of  the  proceeiings  to  court  and  an  order  of  sale  there 
made.     Siancel  v.  Crdvert,  1  Winst,  101. 

118.  A  justice  has  no  jurisdiction  of  a  guaranty.  Jo  mson  v. 
Olive,  1  Winst.,  215. 

See  (Assumpsit — When  it  will  or  Avill  not]ie,_23.)  (Constitu- 
tion  Acts  which  have  been  declared  constitutioDal,  5.)  (Exe- 
cution— Purchaser  at  execution  sale,  71-75.)  ((juaranty,  17.) 
(Judgment— Of  the  effect  of  a  judgment,  8.)  (Judgment— Of 
irregular,  void  and  erroneous  judgments,  1-6  )  (Justices  of  the 
Peace— Of  Justices'  warrants  in  civil  cases,  2.) 

v.     justices'  executions  levied  on  land  and  returned  to  court. 

See  (Justices  of  the  Peace — Of  their  jurisdiction,  judgment 
and  execution,  4-5-6-7-8-10-23-43-44-15-49-50-51-55-57-58 
59-62-63-64-66-67--71-72-76-77-80-84-8U-9U-yi-98- 109-  111 
-117.) 

VI.       OF  THE  RESPONSIUILITY  OF  JUSTICES. 

1.  A  civil  action  is  maintainable  against  a  justice,  acting  in 
his  office  out  of  court  either  maliciously,  oppressively  or  cor- 
ruptly; as,  where  he  unjustly  and  riwlmously  deprived  a  party  of 
his  appeal.     Hardisonv.  Jordan,  Conf  Pep.,  454,  (512.) 

2.  Tlie  justices  of  the  county  court  are  not  obliged,  by  their 
own  exertions,  to  build  and  repair  jails:;  they  are  only  bound  to 
use  such  means  for  the  accomplishment  of  that  end  as  the  law 
prescribes,  viz,  to  lay  taxes,  appoint  commissioners,  &c,,  and  for 
.in  omission  of  one  or  all  of  these  acts,  it  seems,  they  may  be  in- 
dicted jointly  as  a  body,  but  the  indictment  must  charge  which 
of  the  duties  prescribed  by  the  act  has  been  omitted;  and  it  is 
not  suflicieut  to  charge  generally,  that  they  negligently  and  un- 
.awfully  did  permit  the  jail  to  go  to  ruin  and  decay.  State  v. 
Justices  of  Lenoir,  4  Hawks,  194. 

3.  Under  the  act  of  1790,  justices  are  liable  to  an  action  of 
•debt,  only  where  they  have  not  taken  any  bond  from  the  sheriff'; 
diey  are  not  liable  when  they  have  committed  a  mistake  hon- 
estly in  the  form  of  it;  but  they  are  liable  when  guilty  of  mala 
■ides  or  gross  neglect.  Governor  v.  31cAffee,  2  Dev.,  15.  (See 
Rev.  Code,  ch.  78,  sec.  7.) 


JUSTICES  OF  THE  PEACE— VL— ETC. 

4.  It  is  gross  iieo'ligence  in  the  justices  of  the  county  coiu't  to 
take  from  their  clerk,  as  a  bond,  an  instrument  having-  no  sum 
of  money  inserted  in  the  body;  and  they  will  be  liable  therefor, 
as  if  they  had  taken  no  bond.  State  Bank  v.  Davenport,  2  Dev. 
and  Bat.,  45. 

5.  The  justices  of  the  county  court  may  be  proceeded  against 
in  a  summary  manner,  under  the  acr  of  1819,  as  the  sureties  of 
their  clerk,  for  permitting  him  to  officiate  as  clerk,  without  giv- 
ing bond,  as  prescribed  in  the  act  of  1790  and  1809.  Ibid. 
(See  Rev.  Code,  ch.  78.  sees.  5  and  7.) 

6.  Whether  in  granting  an  appeal  and  accepting  the  security 
which  the  law  requires,  a  justice  does  not  act  in  a  judicial  char- 
acter, and  on  a  matter  witidn  his  jurisdiction,  qnoere.  If  he  do, 
then  no  action  can  be  sustained  against  him  for  taking  insuf- 
ficient security;  for  no  action  can  be  supported  against  a  judge 
or  justice,  acting  judicially  and  within  the  sphere  of  his  jurisdic- 
tion, however  erroneous  his  decision,  or  malicious  the  motive 
imputed  to  him.  But  if  he  do  not,  he  is  still  not  liable,  if  he 
acted  bona  fide,  and  according  to  his  best  information.  Cun/iing- 
ham  V.  Bi/liard,  4  Dev.  and  Bat.,  351. 

7.  Where  a  justice,  in  good  faith  and  to  preserve  order,  direct- 
ed by  pai'ol  the  sheriff  to  take  into  his  custody  and  tie  a  person 
who  interrupted  and  insulted  him  in  a  disorderly  manner,  while 
he  was  oificially  engaged,  it  u'os  held  that  he  was  not  liable  to 
an  action  theretor.     Furr  v.  3Ioss,  7  Jones,  525. 

8  The  justices  of  a  county  are  not  responsible  to  the  owner  of 
property,  for  injuries  to  it  caused  by  defects  in  the  public  bridges 
in  their  county.     Kinsey  v.  Justices  of  Jones,  8  Jones,  186. 

See  (Limitations — When  the  statute  will  or  will  not  bar,  25.) 
(Indictment — When  an  indictment  will  lie,  37.)  (Indictment — 
Form  and  matters  relating  thereto,  97-153.) 


LANDLORD  AND  TENAN  I\ 

1.  A  landlord  has  no  power  to  distrain  torrent  in  tliis  state, 
the  process  of  distress  having  never  been  adopted  here.  Dal- 
(jleish  V.  Grandj/,  Conf  Rep.,  22,  (161.) 

2.  A  lessor,  who  parts  with  the  reversion,  cannot  recover  rent 
accruing  subsequently.     Marldand  v.  Crump,  1  Dev.  and  Bat.,  94. 

3.  The  distinction  between  an  assignment  and  an  under-lease 
depends  solely  upon  the  quantity  of  interest  which  passes,  and 
not  upon  the  extent  of  the  premises  transferred.  When,  there- 
fore, the  lessee  of  a  house  for  seven  years  demises  jx/r^  of  the 
house  to  another  for  the  whole  of  his  term,  it  is  not  an  under- 


838  LANDLOED  AND  TENANT. 

lease,  but  an  assignment  pro  tanto.     Lunsford  v.  Alexander,  4 
Dev.  and  Bat,  40. 

4.  A  landlord  has  no  li-en  on  tlie  crop  of  his  tenant  for  his  rent, 
though  it  may  be  reserved  in  kind,  or  in  part  of  the  crop. 
Whether  such  an  agreement  is  contained  in,  or  is  out  of,  the 
lease,  the  lessor  stands  upon  no  better  footing  than  the  other 
creditors  of  the  lessee.  Beaver  v.  Bice,  4  Dev.  and  Bat.,  431. 
(Such  kinds  of  rent  are  now  exempt  from  execution  against  the 
lessee,  except  for  taxes.     See  Eev.  Code,  ch.  63,  sec.  1.) 

5.  Upon  a  lease  for  a  year,  the  lessee  acquires  an  estate  in  pos- 
session in  severalty  during  the  term,  so  that  the  crops  growing 
or  standing  on  the  land  are  entirely  his  property;  and  if  an  exe- 
cution in  favor  of  a  third  person  be  issued  {igi;iinst  ihe  tenant 
during  the  year,  it  will  bind  the  crop  i'rom  its  /este,  so  that  he 
cannot  afterwards  sell  it  to  another,  or  assign  it,  or  any  part  of 
it,  to  his  landlord  in  payment  of  his  rent.  Ibid.  (See  the  re- 
ference in  the  note  to  the  last  section.) 

6.  As  to  the  land,  the  particular  tenant  holding  over  stands 
towards  the  remainderman  as  a  tenant  towards  his  landlord. 
But  the  idea  of  such  tenancy  does  not  belong  to  the  ownership 
of  distinct  successive  estates  in  personal  chaTtels,  and  not  arising 
out  of  any  contract  between  the  parties.  Montgomery  \.  Wynns, 
4  Dev.  and  Bat.,  527. 

7.  If  a  landlord  during  the  continuance  of  the  lease,  and  be- 
fore the  rent  becomes  due,  convey  the  land  to  the  lessee  in  fee, 
the  rent  Avill  be  extinguished.  Therefore,  where  a  guardian 
rented  out  land  but  took  no  bond  or  other  security  to  himself  for 
the  rent,  and  before  the  rent  became  due  the  ward  came  of  age 
and  conveyed  the  land  in  fee  to  the  lessee,  it  was  held  that  the 
rent,  being  incidental  to  the  reversion,  was  extinguished  by  the 
convevance  of  that  reversion  to  the  lessee.  AHiion  v.  Coffield,  2 
Ired.,301.  ^      . 

8.  A  tenant,  v\dio  is  about  to  remove,  has  a  right,  where  there 
is  no  covenant  or  custom  to  the  contrary,  to  all  the  manure  made 
by  him  on  the  farm  ;  it  is  his  personal  property  and  he  may  take 
it  with  him.  But  it  ceases  to  be  his,  if  he  leave  it  when  he  quits 
the  farm.     SmitJndck  v.  ElUsoth,  2  Ired.,  326. 

9.  The  tenant  may  rake  the  manure  into  heaps,  and  the  tak- 
ing the  slight  portion  of  earth,  which  will  te  necessarily  mixed 
with  it  in  the  process,  will  not  make  him  a  tortfeasor.     Ibid. 

10.  Where  a  lease  was  given  upon  condition  that  the  lessee, 
at  the  end  of  each  year,  should  give  bond  and  security  for  the 
rent  of  the  succeeding  year,  and  at  the  expiration  of  one  year 
the  lessee  failed  to  give  such  bond  and  security,  but  the  lessor 
was  absent  and  did  not  demand  it,  it  loas  held  that  no  forfeiture 
was  incurred,  it  being  the  duty  of  the  lessor  to  make  the  de- 
jmand.     Taie  v.  Croioson,  6  Ired.,  65. 

■11.  The  daw  leans  against  forfeitures;  and  when  the  agency 


LAXDLOED  AND  TENANT.  839 

of  the  landlord  is  involved  in  any  way  in  the  act,  which  is  to 
work  or  prevent  a  forfeitnre,  he  ought  so  to  act,  as  to  make  it 
appear  clearly  that  he  means  to  insist  on  the  forfeiture.     Ihid. 

12.  The  lessee  should  not  be  punished  without  a  wilfid  de- 
fault, which  cannot  be  made  to  appear,  unless  an  actual  demand 
be  proved,  and  that  it  was  not  answered.     Ibid. 

13.  In  an  action  for  use  and  occupation,  where  it  appeared 
that  one  P.  had  leased  the  premises  to  the  defendant  for  the  year 
1844,  that  in  the  latter  part  of  that  year  he,  with  the  knowledge 
and  consent  of  the  defendant,  rented  the  same  to  the  plaintiff 
for  the  year  1845,  who  leased  a  part  of  the  same  premises  to  the 
defendant,  wno  occupied  and  held  it  under  the  plaintifi',  it 
loas  held,  that  if  this  were  a  case  in  which  attornment  was  neces- 
sary, the  defendant  had  attorned,  and  at  all  events,  he  was  liable 
to  the  plaintiff  for  the  rent.     Cooke  v.  Norriss,  7  Ired.,  213. 

14.  In  the  case  just  above  stated,  the  defendant  abandoned 
the  premises  before  the  end  of  the  year  1845,  and  no  specific 
contract  being  proved  as  to  the  time  he  should  enjoy  the  prem- 
ises, which  were  a  wharf  and  warehouse  in  a  commercial  town, 
if  luas  held,  to  be  proper  to  leave  the  question,  as  one  of  fact  for 
the  jury,  for  what  time  the  parties  intended  that  the  lease  should 
continue,  and  that  the  court  could  not  say  that  the  lease  contin- 
ued until  the  end  of  the  year.     Ibid. 

15.  In  an  action  upon  a  covenant  for  rent  contained  in  a  lease, 
it  is  compe-^ent  for  the  defendant  to  show  that,  at  the  time  of  its 
being  ma  1j,  the  plaintiff  had  no  title  to  the  land;  provided  he 
can  sh  >w  at  the  same  time  that,  in  consequence  thereof,  he  could 
not  ea:c!r,  or  tiiat  having  entered  he  was  evicted  by  a  paramount 
ti'ic.     Siizud  V.  Jeaidna,  8  Ired.,  27. 

10.  In  every  plea  of  eviction  there  must  not  only  be  an  aver- 
ment that  the  plaiutiff  had  no  title,  but  also  that  in  consequence 
thereof  the  lessee  was  evicted;  as  the  defence  depends  upon 
both.     I  hid. 

17.  Where  A  rents  out  land  belonging  to  B,  the  latter  cannot 
recover  against  the  lessee  upon  a  count  on  the  agreement  for 
rent  of  the  lanl,  because  there  was  no  privity  between  thelessee 
and  B,  unless  B  can  show  A  acted  as  his  agent.  And  for  the 
same  reason  B  cannot  sustain  a  count  upon  an  iraphed  assump- 
sit against  the  lessee,  there  being  no  privity  between  them,  and 
there  baing  an  express  contract  between  the  lessee  and  A.  Har- 
dy^. Williams,  d  h-iid.,  177. 

18.  What  notice  to  quit  is  required  from  a  landlord  to  a  tenant 
in  this  state,  quaere.     Phelps  v.  Long,  9  Ired.,  22(5. 

19.  Whire  a  lease  is  made  and  it  is  agreed  that  the  rent  is  to 
be  paid  in  a  part  of  the  crop,  the  contract  is  executory,  and  the 
title  to  the  crop  made  is  in  the  lessee  until  the  lessor's  part  is 
separated  and  allotted  to  him,  and,  therefore,  before  that  time, 
±he  lessor  Jias  no  jight  to  take  possession  of  any  part  of  the  crop, 


840  LANDLORD  AND  TENANT. 

without  the  consent  of  the  lessee.    Bossy.  Sivnrivger,  9  Ired.,  481' . 

20.  Where  a  person  agrees  to  work  on  the  land  of  another  for 
a  share  of  the  crop,  the  cropper  cannot  convey  a  legal  title  to 
his  share  of  the  crop  to  a  third  person,  before  an  actual  division, 
and  appropriation.  And  the  owner  of  the  land,  who  made  ,the 
contract,  is  not  estopped  to  deny  the  right  of  such  assignee  to 
recover  at  law.     McNeeky  v.  Horf,  10  Ired.,  63. 

21.  A  cropper  has  no  such  interest  in  the  crop,  as  can  ))e  sub- 
jected 1o  the  payment  of  his  debts  while  it  remains  in  mass,  for„ 
until  a  division,  the  whole  is  the  property  of  the  landlord. 
Brazier  v.  Ansley,  11  Ired.,  12. 

22.  Where  the  owner  of  land,  to  which  a  ferry  is  annexed  as 
a  franchise,  leases  the  land  together  with  the  terry,  he  is  not 
responsible  for  any  damage  sustained  by  a  third  person,  from 
the  mismanagement  of  the  ferry  while  in  possession  of  the 
lessee.     Big(/s  v.  FerreU,  12  Ired.,  1. 

23.  Where  there  is  a  lease  of  a  house,  and  a  person  lives  in  it 
by  an  assignment  or  underletting  from  the  lessee,  or  by  her 
license  merely  and  at  her  will,  he  is  concluded  from  questicming- 
the  lessor's  title;  tor  he  came  in  under  him,  and  cannot  withhold 
the  possession,  when  the  term  has  expired  or  been  legally  sur-- 
rendered.     Kbtge  v.  Lachenoiir,  12  Ired.,  180. 

24.  A  contract  was  as  follows:  A  was  to  cidtivate  a  plantation 
belojiging  to  B,  in  the  year  1849,  and  was  to  furnish  the  means., 
and  materials  to  make  the  crop,,  as  far  as  he  was  able,  and  such 
as  were  not  furnished  by  him  were  to  be  furnished  by  B.  At  the 
end  of  the  year  B  was  to  set"!  the  crop  and  have  one-third,  and: 
then  deduct  all  the  expenses  and  pay  the  residue  to  A;  and  it 
was  held  th'dt  this  was  not  a  leasing  of  the  land  by  the  one  party 
to  the  other,  nor  the  case  of  hiring  a  laborer  by  the  owner  of  the- 
land;  but  the  parties  were  joint  owners  of  the  crop;  and  B  hav- 
ing-survived  A  had  a  right  to  the  property  as  joint  owner,  in 
order  to  dispose  of  it  according  to  the  contract.  Moore  v.  SpruiU^. 
13  Ired.,  55. 

25.  Turpentine  trees  are  the  subject  of  lease.  Books  v.  3Ioorey 
Busb.,  1. 

26.  Where  A  demised  to  Bin  writing  a  tract  of  land,  and 
excepted  thereout  a  certain  lot,  reciting  that  one-halt  thereof  he 
had  in  writing  devised  to  J.  S.  (and  which  had  been  surrendered 
by  J.  S.)  and  the  other  half  he  had  by  parol  agreed  to.  lease  to 
J.  D.,  to  whom,  after  the  said  lease  to  B,  he  demised  in  writing- 
the  entire  excepted  lot;  it  was  held  that  the  excepted  lot  did  not 
pass  in  the  demise  to  B,  even  though  the  recitals  were  false,  and 
that  B  could  not  recover  it  from  one  claiming  under  J.  D. 
Hargrove  v.  Miller,  Busb.,  68. 

27.  Where  the  forfeiture  of  a  lease  is  incurred  by  the  non-pay- 
ment of  rent,  if  the  landlord  receives  frona  the  lessee  rent  subse^ 


LANDLORD  AND  TENANT.  841 

quently  accruing,  tlie  forfeiture  is  thereby  waived.  Rirlhury  v. 
Barilnj,  Busb.,  418. 

28.  Where  the  lessee  of  a  lot  for  a  term  of  years  covenanted 
that  he  would  not  remove  from  the  lot  any  l)uilding-,  Avhich  he 
might  put  thereon,  until  the  rent  was  paid,  and  a  building  put 
thereon  by  him  during  such  lease  was  removed  by  a  tliird  per- 
swi  with  the  consent  of  the  lessee,  the  rent  being  unpaid,  if  was 
held  that  such  third  person  was  liable  in  damages  to  the  lessor 
lor  siieli  removal;  and  that  the  lessee  was  a  competent  witness 
for  the  lessor  against  such  third  person.  Forbes  v.  Wi'liams,  1 
Jones,  393. 

21).  An  agreement  between  A  and  B.  that  B  shall  cultivate  the 
turpentine  trees,  that  is.  make  and  save  tnrpentine  on  the  land 
where  A  lives  for  one  year,  A  giving  him  half  of  the  turpentine, 
&c.,  he  may  save  for  his  labor,  &c.,  is  not  a  lease  of  the  land  or 
of  the  pine  trees  to  B,  and  he,  therefore,  cannot  maintain  tres- 
pass qu'ire  d'lasumf regit  against  a  person  who  enters  and  collects 
tuipentine  from  the  trees.     Denton  v.  StruMand,  3  Jones,  61. 

30.  Where  a  person  had  rented  a  place  to  another  to  make  a 
crop,  of  which  the  parties  were  each  to  have  a  half,  and  the  own- 
er of  the  land  was  to  furnish  a  horse,  it  nns  held  that  a  tenancy 
was  created,  and  that  the  tenant  might  bring  trespass  qnaredau- 
sum  f regit  against  his  landlord  for  an  unkuvful  oitry.  Hatchell 
V.  Knnln'ouglt,  4  Jones,  1(^3. 

31.  Where  a  paper  writmg  was  executed  by  the  owner  of  land, 
acknowledging  the  receipt  of  a  certain  bond  for  money  in  pay- 
ment for  the  "purchase  of  cypress  timl)er"  on  the  land,  with'a 
further  agreement  to  let  the  purchaser  have  a  certain  number  of 
years  "to  cut  the  timber  olf  of  the  land,"  it  was  held  that  it  cre- 
ated a  lease  for  years,  so  as  to  enable  the  purchaser,,  or  his  as- 
signee, to  occupy  the  land  and  take  the  cypress  timber  for  the 
time  stated  in  the  paper  writing      Bloving  v.   Ward,  5  Jones,  272. 

32.  The  act  of  1824,  by  which  the  long  terms  for  years,  cre- 
ated by  the  Tuscarora  Indians,  are,  for  certain  purposes,  made 
real  estate,  has  no  effect  upon  the  reversions  expectant  on  those 
terms.  Burnett  v.  Thompson,  6  Jones,  210,  S.  C.  and  S.  P.  7 
Jones,  407. 

33.  Where  a  tenant  entered  into  the  occupation  of  a  room  in  a 
warehouse,  under  an  express  lease  from  nunith  to  month,  and  he 
continued  the  occupation  for  more  than  two  years,  he  cannot  be 
considered  as  a  tenant  from  year  to  year,  and  thus  be  entitled  to 
a  six  months'  notice  to  quit.     Jones  v.   WiUis,  8  Jones,  4;>0. 

34.  ^?<cere,  as  to  what  notice  to  quit  a  tenant  from  nionth  to 
month  is  entitled.     Ibid. 

See  (Assumpsit,  4-19-39.)  (Ejectment — Of  the  defence  and 
herein  of  the  consent  rule,  20-21-31-33-34-35-39-40-41.)  (Es- 
toppel— By  matter  other  than  by  record  or  deed,  3-G-8-14- 
15-17-18-21-2J2.-2S-29-30^31-35.)  (Registration-,  20-25-26.) 
(Surrender.) 


842  LAECENY. 


LARCENY. 

1.  The  judges  were  equally  divided  upon  the  question,  whether 
a  borrowing,  with  intent  to  steal,  will  support  a  chai'ge  for  lar- 
ceny— Is  a  trespass  in  the  taking  an  e=!sential  ingredient  in  the 
offence?— 5';'afe  v.  Long,  1  liay.,  154.  (177.) 

2.  Larceny  may  be  committed  in  stealing  a  slave:  therefore, 
in  an  indictment  under  the  act  of  1799  for  stealing  a  slave,  it  is 
not  necessary  to  add  "  with  the  intention  to  sell  or  to  dispose  of 
to  another,  or  to  appropriate  to  his  own  use,"  as  that  is  implied 
in  the  charge  of  stealing.  Slate  v.  Hall,  Tay.,  126,  (7G.)  S.  C, 
2  Hay.,  105,  (2f)5.).     (See  Rev._  Code,  ch.  34,'sec.  10.) 

3.  A  person  cannot  be  convicted  on  an  indictment  for  stealing 
that  which  has  neither  an  intrinsic  nor  artificial  value,  as,  for 
instance,  "one  half  ten  shilling  bill  of  the  currency  of  the  State." 
Stoie  V.  Bnjaut,  2  Car.  L.  R,  2(59,  (249.) 

4.  A  person  may  be  convicted  for  stealing  a  runaway  slave, 
knowing  him  to  be  a  runaway,  and  to  whom  he  belonged.  State 
V.  Davk  2  Car.  L.  R.,  291,  (271.) 

5.  Larceny  cannot  be  committed  unless  the  thing  be  taken 
against  the  will  of  the  owner.  Hence  if  the  thing  be  sent  by 
the  owner,  for  the  purpose  of  entrapping  the  taker,  it  will  not  be 
larceny.     Drld  v.  Hamilton,  N.  C.  Term,  R.,  31,  (471.) 

6.  Larceny  or  seduction  under  tlie  act  of  1779  cannot  be 
committed  of  a  slave,  where  the  owner,  through  his  agent, 
consents  to  the  taking  and  asportation,  though  such  consent  was 
given  for  the  purpose  of  apprehending  the  felon ;  but  when  the 
defendants  bring  a  slave  to  a  particular  place,  after  such  assent 
of  the  owner,  but  in  pursuance  of  a  plan  matured  before  tlie  as- 
sent given,  if  the  jury  are  satisfied  that  both  defendaiits  were 
privy  to  the  felony  and  equally  concerned,  they  may  properly 
convict  them.  Sl(fte  v.  Jerna.fjan,  N.  C.  Term,  44,  (483.)  (For 
the  present  law  on  the  subject,  see  Rev.  Code,  ch.  34,  sec.  10.) 

7.  One  who  procures  or  instigates  a  petty  larceny  to  be  com- 
mitted is  a  principal.     State  v.  Barden,  1  Dev.,  518. 

8.  Where  a  shawl  was  dropped  in  an  exhibition  room,  and 
picked  up  by  the  defendant,  placed  in  a  conspicuous  situation, 
and  afterwards  clandestinely  appropriated  to  his  own  use,  it  was 
held  that  he  was  guilty  of  larceny.     Stcde  v.  Bop.r,  3  Dev.,  473. 

9.  In  an  indictment  for  grand  larceny,  one  cannot  be  convic- 
ted as  a  principal,  unless  he  were  actually  or  constructively  j)res- 
ent  at  the  taking  and  carrying  away  of  the  goods.  His  previous 
assent  to,  or  procurement  of,  the  caption  and  asportation,  will 
not  make  him  a  principal ;  nor  will  his  subsequent  reception  oi 
the  thing  stolen,  or  his  aiding  in  concealing  or  disposing  of  it, 
have  that  effect.     State  v.  Eardtn,  2  Dev.  and  Bat.,  407. 

10.  Witere  one  got  staves  upon  the  land  of  another,  upon  eon- 


LARCENY.  843 

tract  to  have  half  for  getting-  them,  it  teas  held  that,  while  they 
remained  on  the  land  undivided,  the  manufacturer  was  neither 
a  tenant  in  common  vith  the  owner  of  the  land,  nor  a  bailee  of 
the  staves;  and  that,  the]-efore,  he,  or  any  other  person  with  his 
connivance,  might  be  guilty  of  larceny  in  taking  them.  State  v. 
Jones,  2  Dev.  and  Bat.,  544. 

11.  Where  one  labors  upon  the  farm  of  another  upon  an  agree- 
ment to  have  a  share  of  the  crop,  the  property  in  the  entire  crop 
remains  in  the  employer,  before  the  share  of  the  laborer  is  sepa- 
rated from  the  general  mass.     Ibid. 

12.  The  presumption  that  he  who  is  found  in  the  possession  of 
stolen  goods,  recently  after  the  theft  was  committed,  is  himself 
the  thief,  applies  ordy  when  this  possession  is  of  a  kind  which 
marrifests  tliat  the  stolen  goods  have  come  to  the  possessor  by 
his  own  act,  or,  at  all  events,  luith  Ids  undouhtul  concurrence.  Slate 
V.  Smith,  2  Irod.,  402. 

^  13.  Where  the  defendant,  and  two  of  his  sons  who  lived  with 
him,  were  indicted  for  stealing  tobacco,  and  the  tobacco,  which 
was  stolen  in  the  night,  was  found  the  next  day  in  an  outhouse 
of  the  defendant,  occupied  by  one  of  his  negroes,  and  in  which 
he  kept  tobacco  of  his  own,  and  the  tobacco  so  found  was  claimed 
by  him  as  his  own,  though  proved  to  be  the  tobacco  that  was 
stolen,  it  icas  held  to  be  error  to  charge  "  that  the  possession  of 
the  stolen  tobacco,  thushMvuliu  the  defendant's  possession,  raised, 
in.  law,  a  strong  presumption  of  his  guilt.     Ibid. 

14.  In  an  indictment  for  larceny,  when  the  property  stolen  is 
alleged  to  be  the  property  of  A  B,  and  that  the  defandant  "  did 
feloniously  steal,  take  and  carry  away  the  said  property,"  it  is  a 
sufficient  description  of  the  offence,  witliout  saying  that  the  prop- 
erty was  actually  in  the  possession  of  A  B,  or  that  it  was  actually 
taken  out  of  his  possession,  the  law  implying  his  possession  from 
his  ownership.     State  v.  GoIUmorc,  7  Ired.,'l47. 

15.  An  indictment  for  stealing  a  hog  is  well  supported  by 
showing  that  the  defendant  stole  a  shoat.  State  v.  Gadet  7 
Ired.,  210. 

16.  Where  an  indictment  alleges  the  property  stolen  to  be  the 
property  of  Elizaheth  M.,  and  the  evidence  shows  it  was  the 
property  of  a  woman  called  Betsey  iM.,  it  nuist  be  left  to  the  jury 
to  decide,  whether  the  person  so  described  was  known  by  both 
names.     Ibid. 

17.  In  an  indictment  for  larceny,  the  christian  and  surname  of 
the  party  injured,  if  known,  must  be  stated,  and  the  name  so 
stated  must  be  either  the  real  name,  or  that  by  which  he  is 
usually  known;  as  either  is  sufficient.     Ibid. 

18.  In  an  indictment  for  larceny  the  goods  alleged  t^^  be  stolen 
may  be  described  by  the  names,  by  which  they  are  known  in 
trade,  and  the  same  principle  extends  to  articles  known  by  par- 
ticular names  in  all  the  arts,  pursuits  and  employments  of  life. 
State  V.  Clark,  8  Ired.,  226. 


844  LAECENY. 

19.  Where  a  man  was  indicted  lor  stealing  a  "bull  tongue," 
and  it  appeared  in  evidence  that  he  had  stolen  a  particvdar  kind 
of  plough  share,  usually  known  in  the  neighborhood  in  which  he 
resided  l)y  that  name,  it  ivas  held  that  the  allegation  of  the  in- 
dictment was  well  supported  by  the  eviden-ce.     I  bid. 

20.  An  indictment  will  lie  under  the  statute,  for  feloniously 
taldng  and  carrying  away  a  runaway  slave  "with  intent  to  dis- 
pose of  him  to  another,"  etc  ,  even  though  the  taker  did  not  know 
who  was  the  owner  of  the  slave.     State  v.  JViJliams,  9  Ired.,  140. 

21.  The  possession  of  a  stolen  thing  is  evidence  to  some 
extent,  against  the  possessor,  of  a  taking  by  hiai.  Ordinarily, 
it  is  stronger  or  weaker  in  proportion  to  the  period  intervening 
between  tlie  stealing  and  the  finding  in  the  possession  of  the 
accused;  and  after  the  lapse  of  a  considerable  time,  befCre  a 
possession  by  the  accused  is  shown,  the  law  does  not  inier  his 
guilt,  but  leaves  that  question  to  the  jury  under  all  the  circum- 
stances of  the  case.     1  bid. 

22.  An  i]\dictment  under  the  statute  for  the  abduction  of 
slaves,  which  charges  that  the  defendant  "  by  violence  felon- 
iously took,"  is  as  good  as  if  it  had  averred  that  the  defendant 
"  feloniously  by  violence  took,"  &c.     Ibid. 

23.  In  an  indictment  relating  to  the  larceny  or  abduction  of  a 
slave,  in  describing  hinv  as  the  property  of  A.  B.,  he  may  be 
said  to  be  "  the  property  of  A.  B-.,"  or  of  the  goods  and  chattels 
of  A.  B.,  after  laying  the  value  of  the  slave.     Ibid. 

24.  In  such  an  indictment,  the  words  "with  an  intent  to  sell 
and  dispose  of  the  said  slave"  are  sufficient     Hid. 

25.  Tiu'pentine,  which  has  run  out  of  the  trees  into  boxes  cut 
into  the  tree  for  the  purpose  of  receiving  the  liquid,  is  the  sub- 
ject of  larceny.     But  to  support  an  indictment  for  stealing  two 

barrels  of  turpentine,  it  must  appear  that  the  turpentine  was  in 
barrels  when  it  was  stolen,  not  that  it  was  dipt  from  the  boxes 
in  small  quantities  from  time  to  time,  and  then  deposited  in  bar- 
rels.    fState  V.  Afoore,  11  Ired.,  70. 

26.  To  constitute  a  capital  felony  in  the  case  of  stealing,  &c.,. 
slaves,  the  taking  and  conveying  away  of  the  slave  must  be 
from  t'le  pofisef^sion  of  the  owner,  'f  he  felony  is  not  created  by 
our  statutes  when,  before  the  taking  or  carrying  away,  the  owner 
has  lost  the  possession  of  the  slave  by  the  act  of  another,  even 
though  such  an  act  was  procured  to  be  done  by  the  person 
charged  with  the  felony,  for  a  felonious  purpose.  Neither  the 
act  of  1779,  Rev.  Stat.,  ch.  34,  sec.  10,  nor  the  act  of  1«48,  ch.. 
35,  constitutes  a  felony  in  such  a  case.  State  v.  Martin^  12  Ired., 
157-  (The  law  is  now  altered.  See  Kevised  Code,  ch.  34, 
sec.  10.) 

27.  Under  an  indictment  for  stealing  and  carrying  away  a 
slave  under  the  act,  Rev.  Stat,.ch.  34,  sec.  10,  the  venuemxxf^i  be 
laid,  and  the  prisoner  tried,  in:  the  county  where  the    original  fe- 


LARCENY.-LEASE.  Mfy 

lonious  caption  took  place.     State  v.    Graves,  Bn^h.,   19] .     (See 
•Rev.  Code,  ch.  34,  sec.  10.) 

28.  The  act  of  1852,  ch.  ^7,  concerning  the  stealing  of  slaved), 
is  not  a  repeal  of  the  act,  Rev.  Stat.  ch.  34,  sec.  10,  on  that  sub- 
ject. State  V.  Hester,  2  Jones,  83.  (See  Rev.  Code,  ch.  34,  sec, 
10.) 

29.  Acts,  which  wonld  constitute  one  an  aider  or  abettor  in  grand 
larceny,  would  m;ike  him  a  principal  in  petty  larceny.  Sfofe  x. 
S'tatv,  4  Jones,  440.  (The  distinction  between  grand  and  petty 
larceny  is  now  abolished;  see  Rev.  Code,  ch.  34,  sec.  26.) 

30.  An  indictment  for  larceny  charging,  in  one  count,  the 
thing  stolen  to  be  "a  certain  writ  of/,  fa.  belongiiig  to  the  su- 

erior  court,"  in  another  count,  "a  certain  process  of  and  belonj>- 
c.g  to  the  superior  court,"  and  in  a  third   "a  certain  record  of 
.id  belonging  to  the  superior  court,"  is  too  vague  and  indefinite 
)  be  supported.     State  v.  McLeod,  5  Jones,  318. 

31.  Where  the  prosecutor  lost  a  carpet  bag  on  the  public  high- 
.vay,  and  directed  a  person  to  get  it  for  hinC which  he  did  as  the 
prosecutor's  bailee,  but  afterwards  concealed  the  article  and  de- 
nied that  he  had  it,  it  uxis  held  that  this  was  -only  a  breach  of 
trust,  and  not  a  larceny.     State  v.  Enrjland,  8  Jones,  399. 

32.  It  seems,  that  if,  in  the  case  just  above  stated,  the  bailee 
had  opened  the  bag,  and  taken  out  some  of  the  articles  contained 
in  it,  iiniiiio  furandi,  it  would  have  been  a  larceny.     Ibid. 

33._  An  indictment  under  the  Revised  Code,  cli".  34,  sec.  20,  for 
stealing  a  bank  note  of  a  certain  denomination  and  value,  with- 
out setting  forth  by  what  authority  the  bardv  note  was  issued, 
cannot  be  sustained.     State  v.  Brown,  8  Jones,  443. 

See  (Accessory,  3.)  (Indictment— In  what  cases  an  indict- 
ment will  lie,  1-4.)  (Indictment-^Form  and  matters  relating 
thereto,  5-19-49-52-73.)  (Indictment— Of  the  trial,  verdict  and 
judgment,  16-85-106.)  (Indictment— Plea  of  former  acquittal 
or  conviction,  3.)  (Indictment— Of  quashing  indictments,  3.) 
(Indictment — Variance  between  the  allegations  and  proof,  9.) 
(Evidence— In  criminal  proceedings  and  indictments,  4-27-'46-- 
47-56-92-99-121.) 


LEASE. 

See  (Landlord  and  Tenant.) 


84ff 


LEGACY— I. 


LEGACY. 


I.  Constrnction,  as  to  what  passes  and 
who  takes. 
II.  Whetlier  vested,  contingent  or  exec- 
utory. 
in.  Of  the  assent  of  the  executor,  and 
its  effect. 


IV.  When  a  legaf^y  will  be  presumed  to 
have  been  paid  or  satisfied. 
V.  Legacy  "  after  debts   paid,"  what 
fund  liable  for  them. 
VI.  For  the  separate  use  of  a  married 
woman. 
VII.  Lapsed,  void  and  adeemed  legacies. 


I.       CONSTRUCTION  AS  TO  WHAT  PASSES  AND  WHO  TAKES. 

1.  A  bequest  as  follows:  "I  give  all  the  rest  of  my  negroes 
and  their  increase  to  be  eqnally  divided  among  my  children,  the 
survivor  or  survivors  of  them,  and  their  heirs  Ibrever,"  ivas  held 
to  vest  in  the  children  at  the  death  of  the  testator;  and,  upon  the 
successive  deaths  of  two  of  them,  their  respective  shares  were 
distributed  between  his,-  or  her,  mother  and  brothers  and  sisters. 
Gorhom  v.  ,  Liar.,  52.  (49.) 

2.  The  word  "  heirs,"  when  used  in  a  will  of  personalty,  is  a 
word  of  limitation  always,  and  vests  the  absolute  property.  Cut- 
lay-  V.  Cutlar,  2  Hay.,  154,  (334.) 

3.  A  bequest  of  a  negro  "and  also"  of  lands,  for  life,  passes  on- 
ly a  life  estate  in  the  negro  by  force  of  the  words  "and  also." 
Anonmnons,  2  Hay.,  161,  (340.) 

4.  If  a  bequest  of  a  female  slave  be  to  A,  and  her  future  in- 
crease to  B  and  others,  the  increase  born  after  the  death  of  the 
testator  will  go  to  B  and  the  other  legatees.  Ilidlington  v. 
/Shipman,  Conf  Eep.,  113,  (243.) 

5.  The  children  of  a  female  slave  who  is  specifically  be- 
queathed, which  are  born  after  the  making  ot  the  will  and  be- 
fore the  death  of  the  testator,  do  not  go  with  the  mother,  but 
pass  to  the  residuary  legatee.  Jonefi  v.  Jones,  Conf  Kep.,  310, 
(396.)     (Altered  by  Rev.'Code,  ch.  119,  sec.  27.) 

().  Where  a  slave  was  given  "to  A  for  life,  and  after  his  death 
to  his  son  B  and  his  heirs,  and  in  default  of  his  issue  to  his 
brothers  and  .  sisters  then  living,"  it  to  as  held  that  "then"  was 
used  as  an  adverb  of  time,  and  pointed  to  the  default  of  issue  at 
the  death  of  B,  and  that  therefore  the  limitation  over  was  good. 
Morekmdv.  31o, ■viand,  1  Murph.,  48.  S.  C.  2  Hay.,  375,  (573.) 

7.  A  gives  his  estate  to  his  daughter,  and  if  she  "dies  without 
having  heirs"  then  over;   the  limitation  over  is  too  remote,  and 
the  whole  interest  vests  in  the  daughter.     Bryson  v.  Ddvidson 
1  Murph.,  143.  J  ^ 

8.  A  gave  all  his  estate  to  be  equally  divided  between  B,  C, 
D,  E's  heirs  and  F,  lield  that  the  division  wvas  to  be  made  per 
capita,  by  wdiich  each  of  E's  children  took  an  equal  share  with 


LEGACY— I.  847 

B  and  the  other  legatees.      Whitchurst  v.  PrikUrdr  1  Miirph., 
383. 

_  9.  Where  a  testator  bequeathed  to  his  wife  "two  negroes,  du- 
ring her  natural  life,  and  one  half  the  tract  of  land  I  now  Hve 
on,  during  her  natural  life,  and  then  to  return  to  my  son  W," 
it  was  held  that  the  limitation  to  the  son  was  confined  to  the 
land,  and  the  remainder  in  the  negroes  was  undisposed  of 
Sneed  v.  Harris,  N.  C.  Term  E,,  240,  (672.) 

_  10.  A  legacy  of  a  slave  to  a  wife  for  life,  and  then  to  be  eman- 
cipated (m  a  way  not  allowed  by  law)  does  not  vest  in  the  wife 
any  greater  interest  than  what  i's  expressed,  to  wit,  for  life,  and 
after  her  death  the  executors  may  recover  them,  in  an  action  of 
detinue,  from  her  legatee.    James- v.  Blasters,  3  Elurph.,  110. 

11.  Where  one  put  a  female  slave  in  the  possession  of  another, 
and,  by  his  will  subsequently  made,  bequeathed  that  slave  to  the 
same  person  for  life,  and  proceeded,  "after  her  death  I  give  the 
same  slave  and  her  increase  to"  &c.,  it  teas  held  that  the'ipsue  of 
the  slave,  born  between  the  date  of  the  will  and  the  death  of  the 
testator  did  not  pass  to  the  legatee  for  life.  Foicell  v.  Cook  4 
Dev.,  41)9. 

12;  Where  a  testator,  by  one  clause  of  his  will,  gave  his  daugh- 
ter two  slaves  absolutely,  and  by  a  subsequent  clause  gave  her 
another,  and  proceeded  as  follows:  "which  negro,  together  with 
those  I  formerly  lent  to  her,  to  be  divided  between  her  children," 
tt  was  held  that  parol  evidence  that  the  slaves  mentioned  in  the 
tirst  clause  had,  before  the  making  of  the  will,  been  lent  by  the 
testator  to  his  daughter,  was  admissible,  and  that  fact  being  es- 
tablished, that  the  second  clause  reduced  her  property  in  them 
to  an  estate  for  life,  v/ith  remainder  to  her  children.  ''Blorton  v 
Edwards,  4  Dev.,  507. 

13.  Abequest  to  a  son  "of  every  article  T  have  already  pos- 
sessed him  with,"  will  not,  by  the  mere  force  of  these  words 
pass  a  slave,  which  the  testator  erroneously  supposed  he  had 
emancipated,  and  which  he  had  placed  witli  the  son  for  protec- 
tion only;  and  m  such  case,  whether  it  was  the  testators  inten- 
tion to  pa.^s  the  slave,  is  a  question  of  fact.  White  v.  While,  1 
Dev.  and  Bat.,  200. 

14.  Where  a  testator  bequeathed  certain  slaves  to  the  children 
ot  his  daughter,  and  expressed  his  wish  that  his  son-in-law 
should  not  have  "the  use  or  control"  of  said  slaves,  and  then 
subjoined,  "  but  if  she  survives  him,  then  my  said  dauohter  may 

.  7?.?  !!rf  ^'^''^'t^^'^''^'''  ^""""  ^^^^  widowhood,"  it  was 
held  that  the  daughter  did  not  take  a  legal  estate  in  the  slaves 
upon  which  an  action  at  law  could  be  sustained,  but  that  her 
interest  was  only  an  equitable  one,  and  could  be  protected  only 
in  a^court  of  equity.  Bennett  v.  Williamson,  1  Dev.  und  Bat  28'> 
lo.  A  bequest  by  a  testator  to  his  wife  of  "a  girl  named  Han- 
nah, and  my  horses,  &c.,  and  my  plantation,  with  all  the  lands 


848  LEGACY— T. 

adjoining  to  it,  during  her  lifetime,"  passes  but  a  life  estate  m 
tlie  negro  girl.     Black  v.  Bay,  1  Dev.  and  Bat.,  334. 

16.  A  bequest  by  a  testator  to  )iis  wife  in  the  following  words: 
"  I  wish  her  to  get  Stanford  in  her  third  of  the  property  it  she 
chooses,"  is  not  a  specific  legacy  of  the  slave  t(>  the  wife,  but 
only  gives  her  a  right  to  take  him  at  a  fair  valuation,  tuid,  if  that 
valuation  be  more  than  her  share,  she  must  account  lor  the  sur- 
plus.     Young  v.  Carson^  1  Dev.  and  Bat.,  360, 

17.  A  direction  that  the  testator's  infant  grandchildren  shall 
1)6  "raised"  and  "taken  care  ol"  and  "educated"  creates  a 
charge  upon  the  estate  for  such  raising  and  education  during 
their"" minority.      Cloud  y.  Martin,  1  Dev.  and  Bat.^  397. 

18.  Where  a  testator  bequeathed  Nell,  a  female  slave,  to  his 
"  wife  during  her  natural  life  or  widowhood,"  and  in  a  subse- 
quent claiiserof  his  will  provided  that  the  slave  should  become 
the  property  of  his  "daughters  A  and  B,  at  their  mother's  death, 
or  at  the  time  that  his  son  Thomas  arrives  at  sixteen  years  of 
age,  and  her.  increase,  if  any  before  that  time,  to  be  equally  di- 
vided between  the  rest  of  his  children."  "  If  the  widowhood  of 
my  wife  should  terminate  before  her  natural  hie,  Nell  shall  re- 
main in  this  place  for  the  support  of  my  children,  who  shall  live 
here."  B  irus  held  that  the  increase,  born  alter  the  arrival  of 
Thomas  at  the  age  of  sixteen  years,  but  iTefore  the  death  of  the 
widow,  would  belong,  aftei"  the  death  of  the  widow,  to  A  and  B>: 
particularly  as  that  construction  would  harmonize  with  the  rest 
of  the  will,  which  seemed  to  aim  at  an  equal  distrilmtion  of  the 
testators  property  among  his  children.  Gibboiuw  Ihinn,  1  Dev. 
and  Bat.,  446. 

19.  The  state  of  the  testator's  family,  at  the  time  of  making 
his  will,  may  be  attended  to  in  settling  its  construction.  The 
whole  will  may  also  be  examined,  and  the  state  of  the  property 
looked  at,  if  it  appear  on  the  face  of  the  will;  not  if  it  be  dehors^ 
unless  to  explain  a  latent  ambiguity.     Jbid. 

20  A  residuary  clause  in  a  will,  by  which  all  the  remainder 
of  the  testator's  real  and  personal  estate  w«s  directed  to  be  sold 
by  his  executors,  will  not  pass  slaves  which  he  had  given  to  a 
child  prior  to  1806,  but  which  he  had  subsequently  obtained 
possession  of,  and  held  as  bailee  until  his  death,  nor  will  it  au- 
thorize tiie  sale  of  the  said  slaves  by  the  executors,  so  as  to  de- 
feat the  title  of  the  donee  under  the  act  of  1784.  Bell  v.  Cul- 
pepper, 2  Dev.  and  Bat,  18. 

21.  Where  a  legacy  is  given  to  a  described  class  of  individu- 
als, as  to  the  children  of  A.  B.,  and  no  period  is  assigned  for  the 
division,  the  persons  answering  the  description  at  the  death  of 
the  testator,  that  is,  the  children  of  A.  B.  then  born,  or  in  venttf 
sa  mere,  are  alone  entitled  under  the  bequest.  But  when  the 
enjoyment  of  the  legacy  is  postponed  to  a  particular  time,  as  to 
the  death  of  A.  B.,  then,  unless  there  be  in   the  will  indicationa 


LEGACY— I.  849 

of  a  different  intent,  not  only  those  who  answer  in  the  descrip- 
tion at  the  death  of  the  teKstator,  but  those  who  are  born  after 
his  death,  and  before  the  period  of  division,  are  all  entitled  to 
take;  and  if  any,  who  are  thus  entitled  to  take,  die  before  the  pe- 
riod of  distribution,  ai.d  there  are  no  words  in  the  will  indica- 
ting an  ulterior  disposition  of  their  interests,  as  to  the  survivors, 
tliey  are  vested  interests,  and  are  transmitted  to  their  represen- 
tatives.    Knight  v.  Wall,  2  Dev.  and  Bat.,  125. 

22.  A  bequest  by  a  testator  of  a  negro  girl  and  her  increase  to 
liis  daughter  for  life,  and  after  her  death,  that  "the  girl  shall  go 
to  the  children  of  his  daughter,"  will  carry  the  increase  of  the 
girl,  as  well  as  the  girl  herself,  to  the  children  after  the  mother's 
death,  unless  it  appear  from  other  parts  of  the  will  that  the  tes- 
tator intended  otherwise.     Ihld. 

23.  Where  a  testator  bequeathed  his  negro  woman  Dice  to  his 
daughter  Betsey,  and  added,  "  the  first  born  of  Dice  that  is  liv- 
ing hereafter  to  fall  to  M.  S.,"  it  loas  held  that  the  intention  of 
the  testator  was  to  give  to  M.  S.  the  first  child  that  should  be 
born  alive  after  the  time  he  was  speaking,  to  wit,  the  date  of 
the  will,  and  that  she  would  take  such  first  born  child  whether 
born  in  the  life  time  of  the  testator,  or  after  his  death.  Pearson 
V.  Ihytrn;  4  Dev.  and  Bat.,  60. 

24.  Where  a  testator,  after  lea\ang  all  his  slaves  to  his  wife 
for  life,  and  giving  to  his  son,  after  his  wife's  death,  a  negro 
woman  named  Luck,  bequeathed  to  his  daughter  as  follows: 
"After  nay  wife's  decease,  I  give  to  my  daughter,  M.  M,  C,  one 
negro  boy,  and  if  my  negro  woman  Luck  should  have  another 
child,  1  give  it  to  my  daughter  M.  M.  C;"  and  after  the  testa- 
tor's death,  and  during  the  life  of  his  widow,  Luck  had  two 
children,  of  whom  the  elder  died  in  the  lifetime  of  the  widow, 
and  the  other  survived  her,  it  was  held,  that  by  the  bequest  only 
one,  and  tliat  the  first  born  child  of  Luck,  was  given  to  the  daugh- 
ter; that  in  such  first  horn  child  she  took  a  vested  interest  imme- 
diately upon  the  death  of  the  testator;  and  that  although  such 
child  died  in  the  lifetime  of  the  widow,  yet  the  dangliter  had  no 
title,  upon  the  death  of  the  widow,  to  the  other  child  of  Luck, 
which  was  then  living.     Conner  v.  SdclnveU,  4  Dev.  and  Bat.,  72. 

25.  Where  a  testator,  in  one  clause  of  his  will,  lends  to  his 
wife  all  his  estate,  real  and  personal,  tor  life,  and  in  a  subse- 
quent clause  provides,  that  after  the  death  of  his  wife  his  son 
Khali  have  a  particular  negro  woman,  but  that  her  second  born 
child,  after  that  time,  shall  be  given  to  his  grandson,  it  seems 
that  the  widow  takes  a  life  estate  in  the  child.  White  v.  White, 
4  Dev.  and  Bat,  401. 

2t).  A  bequest  of  slaves  to  the  testator's  daughter,  "for  her  use 
and  benefit  during  her  natural  life,  and  then  to  descend  to  the 
heirs  of  her  body,  if  any,  if  not  any  heirs,  then  to  her  lawful 

12* 


850  LEGACY— I. 

heirs,"  gives  her  the  whole  and  absohite  interest  in  the  slaves. 
Floyd  V.  Thompson,  4  Dev.  and  Bat.,  478. 

27.  Where  a  testator,  after  giving  certain  legacies  to  his  chil- 
dren, and  directing  that  the  residue  of  his  estate  shoidd  be 
equally  divided  between  them,  upon  their  accounting  for  the 
advancements  Avhich  they  had  received,  added,  "  this  direction 
is  not  to  apply  in  case  a  negro  given  or  lent  shall  die  before  me, 
that  being  my  loss;  but  where  any  of  the  said  negroes  shall  have 
been  sold,  or  suffered  to  be  sold,  they  shall  be  charged  at  their 
value  at  the  period  of  such  sale,  except  in  case  of  my  grandson 
T.,  son  of  my  deceased  son,  G.  B.,  who  is  to  pay  to  my  executors 
$500  in  full  of  all  advancements  made  to  liim  or  to  his  father,'' 
it  was  held  that  the  grandson  was  bound  to  account  for  only  the 
sura  of  $500,  and  not  for  that  sum  in  addition  to  the  value  of  two 
negroes  which  had  been  given  to  his  father  andsokl  by  him,  and 
that  no  parol  evidence  could  be  received  to  show,  that  the  testa- 
tor intended  his  grandson  to  account  for  the  $500  in  addition  to 
the  value  of  the  said  negroes  given  to  his  father,  Blacknall  v, 
Wyche,  1  Ired.,  94. 

28.  Where  a  testator,  who  had,  upon  the  marriage  of  his 
daughter  E.,  placed  a  negro  woman,  Fanny,  in  her  possession, 
bequeathed  as  follows:  "I  lend  luito  my  daughter,  E.,  two  ne- 
groes named  Fanny  and  Luke,  during  her  natm-al  life,  and  their 
increase.  Fanny  is  now  in  her  possession,  Luke  she  is  to  receive 
after  mv  decease,  and  if  she  should  never  have  a  lawful  heir 
begotten  of  her  own  body,  for  them  and  their  increase  to  be  re- 
turned to  my  five  children,"  &c.  It  was  held  that  the  children 
of  Fanny,  born  whilst  she  was  in  the  possession  of  his  daiighter 
and  her  husband,  but  before  the  death  of  the  testator,  passed 
under  the  bequest  to  the  daughter.  Hurdle  v.  Elliott,  I  Ired.. 
174. 

29.  A  testator,  after  bequeathing  certain  negroes  to  his  wife 
for  life,  or  during  widowhood,  bequeathed  as  follows  :  "  I  wish 
for  the  negroes  lent  to  my  wife,  if  they  do  not  behave,  to  hu 
hired  out.  I  also  wish  for  all  the  negroes  not  given  to  be  hired 
out  as  soon  as  they  will  bring  anything.  And  after  the  death 
of  ray  wife,  or  marriage,  I  want  all  my  property,  not  given  away, 
to  be  equally  divided  among  my  girls."  The  negro,  for  which 
this  action  was  brought,  was  one  of  those  directed  to  be  hired 
out.  lidd,  that  the  daughters  had  only  an  interest  in 
remainder  after  the  death  or  marriage  of  the  widow,  and  that, 
therefore,  the  plaintiff,  Avho  claimed  under  a  conveyance  from 
the  husband  of  one  of  the  daughters,  could  not  bring  trover  for 
the  negro  during  the  lifetime  of  the  widow,  or  while  she  remain- 
ed unmarried.     Smithivick  v.  Biggs,  1  Ired.,  281. 

30.  Where  the  surplus  of  an  estate  is  left  by  will,  to  be  equally 
divided  "  between  the  heirs  of  A.  B.  and  the  heirs  of  C.  D."  the 


LEGACY— I  851 

'«hikli-en,  or  heirs,  of  A.  B.  and  C.  D.  will  take  per  cajnta  and  not 
per  stirpes,     H(jhbs\.  CraUje,  1  Ired.,  332. 

31.  Where  a  testator  bequeathed  as  follows:  "I  bequeath 
luito  my  wife,  Susanna,  all  my  estate  and  effects  remaining  in 
my  executor's  hands  after  all  my  just  debts  are  paid,  the  said 
property  to  be  and  remain  my  beloved  wife's  during  her  natural 
life;  she  is  not  allowed  to  sell  nor  dispose  ot  said  effects  in  any 
shape  whatever,  agreeable  to  this  my  last  will,  with  the  excep- 
tion of  a  Jiegro  boy  child  by  the  name  of  Larkin.  I  then  further 
will,  that  at  the  decease  of  my  wife,  Susanna,  command  my  exe- 
ecutors  to  make  an  equal  distribution  of  my  said  property  be- 
tween my  five  lawful  heirs;"  and  nothing  further  was  said  aljout 
Larkin,  it  was  held,  that  the  absolute  interest  in  the  boy  Larldn 
passed  to  the  widow,  Susanna.     MaWds  v.  Rhea-,  1  Ired.,  394. 

32.  Where  a  testator  bequeathes  a  negro  woman  and  her  in- 
<yrease,  and  there  are  no  other  words  in  the  will  to  explain  his 
meaning,  only  the  increase  born  after  the  death  of  the  testator 
willpass.  Cohw  Cole,  1  Ired.,  460.  (Increase  born  between 
the  date  of  the  will  and  the  death  of  the  testator  will  now  pass, 
unless  a  contrary  intent  appear  in  the  will,  see  Rev.  Code,  cli. 
119,  sec.  27.) 

33.  A  testator  bequeathed  as  follows:  "I  hereunto  confirm  the 
property  I  have  heretofore  given  to  my  daughter  Susan,  and  one 
dollar  to  her,  her  heirs  and  assigns  forever."  Under  this  be- 
quest a  negro  girl  named  Fan  was  claimed  ;  and  it  was  proved 
that  Fan's  mother  had  been  called  in  the  family  Susan's  negro; 
that  whtvn  Susan  nsarried,  this  mother  had  been  sent  home  with 
her  and  remained  with  her  some  time,  and  was  afterwards  taken 
back  by  the  testator  and  continued  with  him  till  his  death, 
claimed  by  him  as  his  own ;  that  the  testator  had  quarrelled 
with  Susan's  husband;  and,  besides  the  mother  of  Fan,  some  ar- 
ticles of  household  furniture  had  been  sent  home  with  Susan, 
which  had  never  been  reciaiuied.  It  also  appeared  that  in  simi- 
lar bequests  to  his  other  children,  four  in  number,  he  not  only 
gave  them  in  geiieral  terms  the  property  he  had  before  given 
tnem,  but  added  ''including  the  negroes,"  (naming  them.)  Held 
that  the  testator  did  not  intend  by  this  bequest  to  give  any  negro 
to  his  daughter  Sufcfan.     Kinsey  v.  Bhem,  2  Ired.,  192. 

34.  Parol  evidence  cannot  be  admitted  to  add  to,  sid)tract 
from,  or  modify  a  testamentory  disposition,  but  it  is  properly  ad- 
missible to  identify  the  things  therein  described.     Ihid. 

35.  A  bequost  of  personalty  to  A  for  life,  and  at  liis  death,  "  if 
lie  should  die  leaving  heirs  lawfully  begotten  of  his  body,  that 
the  said  property  shall  be  equally  divided  between  them,"  is  a 
limitation  for  life  only  to  A,  with  remainder  to  his  children  a« 
tenants  in  common.     Swain  v.  liascoe,  3  Ired.,  200. 

36.  The  general  rule  in  such  cases  as  the  last  is,  that  wher- 
ever words  in  a  will  would  create  an  estate  tail  in  land  devised, 


852  LEGACY—I. 

the  same  woitis  in  a  bequest  of  chattels  will  carry  the  absolute 
estate;  but  an  exception  to  this  rule  is,  where  farther  words  of 
limitation  have  been  superadded,  as  "executors,  administrators 
and  assigns,"  or  the  words  "  equally  to  be  divided,"  and  the 
like.     Ibid. 

37.  Where  a  testator  bequeathed  as  follows:  ''I  lend  to  my 
daughter,  B.  G.,  one  negro  Avoman  and  her  increase  that  she  may 
hereaiter  have,"  it  ivas  held  tliat  the  bequest  was  not  void  for 
uncertainty,  but  that  the  legatee,  in  order  to  identify  the  woman, 
might  show  that  the  testator  had  bequeathed  all  the  negro 
women  he  had,  except  one,  specitically  by  name  to  other  lega- 
tees, and  tliat  the  one  not  named  in  the  will  passed  under  the 
above  bequest.     Lillard  v.  Reynolds,  3  Ired.,  ?,(M\ 

38.  Where  a  father  had  in  his  life  time  made  gifts  to  several 
of  his  children,  of  which  gifts  some  were  perfect  {>nd  others  not 
strictly  according  to  law,  and  then  by  his  will  bequeaths  prop- 
erty specihcally  to  each  of  his  children,  indicating  an  intention 
to  malve  an  equal  distribution  among  them,  referring  to  and  ta- 
king into  consideration  what  he  had  before  given  them,  it  was 
held  that  the  will  ratified  and  confirmed  all  the  previous  gifts, 
including  certain  slaves  put  into  the  possession  of  one  of  his 
daughters  upon  her  marriage.     Simpson  v.  Bosicell,  5  Ired.,  49. 

39.  A  testator  bequeathed  as  follows:  "  I  do  lend  to  B's  four 
children,  C,  D,  E  and  F,  all  my  estate,  real  and  persouiil,"  and 
then  directed  that  the  estate  should  be  kept  together  until  C  ar- 
rives at  twenty-one  years,  and  then  to  be  equally  divided  among 
the  children,  to  them,  their  heirs  and  assigns  forever,  it  was  held 
that  the  word  "  lend  "  did  not  tie  up  the  estate  to  the  death  of 
the  children.      Cox  v.  Marks,  5  Ired.,  361. 

40.  A  testator,,  having  advanced  to  his  five  children  by  hia 
first  wife  property,  which  he  valued  at  $2,000  for  each,  directed 
by  his  will  that  certain  persons,  to  be  appointed  commissioners 
by  the  county  court,  should,  upon  the  marriage  of  any  of  his 
children  by  his  last  wife,  advance  them  property  not  to  exceed 
$2,000  for  each,  so  that  upon  a  final  division  there  should  be 
equality  among  all  his  childi'en.  All  the  valuations  were  to  be 
made  upon  the  same  scale  or  principle.  It  tvns  held  that  the  com- 
missioners, appointed  by  the  county  court,  did  right  in  fixing 
the  valuation  for  the  younger  children  at  .$2,000  each,.at  the  time 
the  allotment  was  made.     Mayo  v.  May&,  G  Ired.,  84. 

41.  Where  a  testator,  after  sundry  devises  and  bequests,  ad- 
ded, "  all  the  remainder  of  my  estate  1  leave  to  my  wife,  to  be 
divided  among  my  children  as  she  thinks  proper,"  and  she  was 
appointed  executrix  of  the  will,  it  ivas  held  i\v,\t  no  beneficial  in- 
terest passed  to  her  in  the  remamder  thus  disposed  of,  but  she 
only  took  it  in  trust  for  the  benefit  of  her  children  and  to  be  di- 
vided among  them.     Green  v.  Collins,  G  Ired.,  139. 

42.  Where  a  testator,  who  had  put  a  woman  slave,  named  P, 


LEGACY— I.  853 

into  the  possession  •<if  his  daughter,  during  which  time  she  had 
two  children,  and  then  took  her  back  when  she  had  another 
child,  bequeathed  as  follows:  "I  give  to  my  daughter  all  the 
property  I  have  heretofore  possessed  her  with,  except  negro  wo- 
man P,  which  1  lend  to  her  .during  her  life,  and  after  her  death, 
the  negro  woman  P  and  all  her  increase  to  be  equally  divided 
among  my  daughter's  children,"  and  the  executor  assented  to 
the  legacy,  it  teas  held  that,  after  the  daughter's  death,  the  chil- 
dren could  not  recover  any  of  these  negroes  by  petition ;  Jirst, 
because,  as  to  the  negro  woman  P,  the  legal  estate  had  vested  in 
them,  and  they  might  recover  in  an  action  at  law;  secondly,  be- 
cause, as  to  the  issue  of  P  born  before  the  testator's  death,  they 
did  not  pass  under  the  Mall  to  the  children  of  the  testator's 
daughter.     Hurdle  v.  Beddick,  7  Ired.,  87. 

43.  "  Increase"  in  the  bequest  of  a  female  slave  means  only 
the  increase  born  after  the  testator's  death,  unless  there  be 
an  apparent  intent  to  include  issue  born  after  the  making  of  the 
will,  or  even  before,  by  words  of  reference  to  a  period  from 
"which  the  birth  of  the  issue,  that  is  to  pass,  shall  be  counted. 
Ibid.  (Issue,  born  before  the  testator's  death,  will  now  pass,  un- 
less a  contrary  intent  appear  by  the  will.  See  Rev.  Code,  ch. 
119,  sec.  27.) 

44.  A  testator  gave  to  his  wife  by  will,  during  her  life  or  wid- 
owhood, all  his  estate  except  what  he  should  otherwise  dispose 
of.  He  then  gave  to  his  children  certain  property  to  be  theirs  at 
Ats  decease,  and  added  the  following  clause:  "Also,  at  the  de- 
cease of  my  wife,  I  give  to  my  so)i,  G.,  my  man  Stephen,  and  to 
my  so)i,  L.,  my  man  Charles.  Also,  I  give  to  my  son,  L.  W.jlall 
my  lands,  &c.,  (in  which  he  had  previously  given  his  wife  a  ife 
estate.)  Also,  unto  my  son  L.  W.,  1  give  my  two  boys  Dick  and 
David  with  their  mother."  It  was  held  that  these  negroes  did  not 
pass  immediately  to  L.  W.,  but  only  in  remainder  after  the  death 
or  marriage  of  the  widow.     Sherrill  v.  Echard,  7  Ired.,  161. 

45.  A  testator  bequeathed  as  follows :  "  I  give  unto  my  daughter 
E.  C.  during  her  natural  life,  at  theend  of  which  to  the  only  heirs 
other  body,  one  negro  girl,  Iliah,  this  to  the  aforementioned  to 
them  and  their  heirs  forever,"  it  was  held  that  as  this  disposition, 
if  applied  to  land,  would  have  created  an  estate  tail,  it  gave  the 
absolute  property  in  the  slave  to  C.  C,  there  being  nothing  in 
the  other  parts  of  the  will  to  show  that  the  words  "heirs  of  the 
body"  meant  children.     Coon  v.  Rice.,  7  Ired.,  217. 

4(3.  When  slaves,  by  a  will  made  by  a  testacor  in  South  Caro- 
lina, were  directed  to  be  emancipated,  and  then  the  testator  said, 
"all  the  balance  of  my  estate  to  belong  to  C.  J.,"  it  was  held  that 
C.  J.  could  not  claim  these  slaves  at  law  under  the  residu- 
ary clause,  even  if  the  bequest  for  emancipation  were  void  by 
the  laws  of  South  Carolina,  because  they  did  not  pass  by  the 
words  of  the  .residuary  clause,  but  only  fell  into  the  residue  by 


854  LEGACY— I. 

the  operation  of  law,  and  C.  J.'s  title  was  only  an  equitable  one.. 
Jones  V.  Ahernotlty,  11  IrecL,  280. 

47.  A  testatrix  bequeathed  as  follows :  "  My  girl,  Maria,  after 
my  death,  I  do  not  leave  her  as  a  bond  slave  to  any  person ;  I 
wish  her  to  live  here  among  my  children,  or  otherwise  if  she  sees 
proper.  I  leave  J.  S.  to  act  as  trustee  for  said  girl."  Also,  "  I 
will  and  bequeath  twenty-five  dollars  to  Maria;"  il  loas  held  that 
J.  S.,  took  the  legal  title  to.  Maria,  under  the  will.  Simpson  v. 
Kimi,  11  Ired.,  377. 

48.  Where  a  testator  gave  all  his  "  property"  to  his  wife,  and 
directed  that  after  her  death  "  it  siiould  be  sold,"  &c. ;  it  iras  held 
that  choses  in  action  did  not  pass.  Pippin  v.  Ulb'son,  12  Ired., 
61. 

49.  The  term  "-property,"  in  it  legal  sense  does  not  include 
choses  in  action;  and  in  reference  to  personalty  is  confined  to 
"goods,"  which  embrace  things  inanimate,  as  furniture,  &c., 
and  "chattels,"  which  embrace  living  things,  as  horses,  &c. 
Ibid. 

50.  A  testator  bequeathed  as  follows :  "  I  loan  to  my  wife 
one  negro  man.  Primus,"  &c.,  "  also  she  may  take  choice  of  any 
one  of  the  negro  girls  belonging  to  my  estate,  which  I  may  not 
give  away,"  &c.,  "  and  at  the  death  of  my  wife,  the  negroes  I 
have  loaned  to  my  wife,  and  their  increase,  I  want  to  be  equally- 
divided  between  my  four  grand-children,"  &c. ;  it  teas  held,  that 
the  wife  took  only  a  life  estate  in  the  girl  selected  by  her  from 
those  not  given  away.     Hyman  v.   WiUiams,  12  Ired.,  J(2. 

51.  A  residuary  clause  operates  as  a  limitation  of  the  interest 
of  the  tenant  for  life,  and  passes  it  over  as  effectually  as  if  there 
had  been  an  express  limitation  over  of  the  specific  thing. — 
Ibid. 

52.  A  present  bequest  of  a  slave  or  money  is  not  to  be  post- 
poned until  the  expiiation  of  a  life  estate,  although  counected 
by  the  word,  "  also"  Avith  a  devise  of  land  thus  postponed,  when 
the  effect  of  such  a  construction  would  be  an  intestacy  as  to 
such  slave  or  money,  during  such  life  estate.  Hobertson  v.  Bo- 
l)eris,  1  Jones,  74. 

53.  In  giving  a  construction  to  a  will,  the  presumption  is  that 
the  testator  did  not  mean  to  die  intestate  as  to  any  part  of  his- 
estate,  and  this  presumplion  may  be  strengthened  by  declara- 
tions in  the  will  to  that  effect.  Foust  v.  IreJahd,  1  Jones, 
184. 

54.  Where  a  testator  bequeathed  personal  property  to  his  wife, 
so  long  as  she  should  remain  his  widow,  and  in  case  she  married 
should  quit  tlie  plantation  and  give  up  the  property,  but  made 
no  provision  for  the  alternative  of  not  marrying,  and  the  widow- 
did  not  marry,  it  was  held  that  the  meaning  might  be  that  the 
\vidow  should  take  an  absolute  estate  in  the  property  in  the 
frvent  of  her  not  marrying,  and  that  this  construction  was  forti- 


LEGACY— I.  855 

fied  by  the  context  of  the  will,  that  the  testator  intended  to  dis- 
pose of  the  whole  of  his  estate.     Ibid. 

55.  The  word  "  heirs,"  when  used  in  a  will  in  relation  to  per- 
sonal property,  generally  is  held  to  mean  those  who  take  under 
the  statute  of  distributions,  and  as  such,  the  widow  is  generally 
included;  yet,  where  the  context  shows  plainly  that  children 
only  are  meant,  the  widow  will  be  excluded.  Henderson  v.  Hen- 
derson, 1  Jones,  221. 

56.  Where  it  is  manifest  from  other  clauses  in  the  will,  that 
the  testator  meant  to  separate  two  slaves  from  the  mass  of  his 
estate,  and  to  dispose  of  them  differently  from  that  which  had 
been  given  to  his  wife  for  life,  and  it  appearing  also  that  his  wife 
Avas  au  object  of  his  special  bounty,  the  following  words  were 
construed  to  pass  to  her  an  absolute  estate  in  the  slave  in  ques- 
tion, viz:  "I  further  bequeath  to  my  wife,  C.  N.,  two  servant 
boys,  Richard  and  Pinkney,  to  have  and  to  hold,  and  to  expose 
of  at  her  own  discretion  while  she  lives,  and  at  her  death  so  as 
not  to  be  disposed  of  out  of  the  family;"  and  it  was  held  further, 
that  the  latter  words,  "not  to  be  disposed  of  out  of  the  family," 
were  inconsistent  with  the  absolute  estate  given  by  the  previous, 
words,  and  were,  therefore,  inoperative.  Newland  v.  Neidand, 
1  Jones,  463. 

57.  Where  a  testator  had  put  certain  slaves  into  the  possession 
of  his  son-in-law  and  daughter  A.,  as  he  had  done  towards  sev- 
eral of  his  other  children,  and  showed  by  several  other  provis- 
ions of  his  will,  a  general  intention  to  confirm  such  possessions 
as  gifts,  and  added  a  qualification  to  the  gift  to  A.  and  her  hus- 
band, to  subject  their  legacy  to  the  payment  of  a  debt  to  him 
due  by  the  son-in-law,  if  the  debt  were  not  paid  within  a  certain 
time,  and  the  debt  was  paid  within  the  time;  it  was  held  that 
the  gift  of  the  slaves  was  established  and  confirme'!  in  the 
daughter  A.,  and  they  therefore  became  the  property  other  hus- 
band.    Sharpe  v.  Campbell,  1  Jones,  520. 

58.  Where  the  testator  declared  his  purpose  to  provide  bounti- 
fully for  his  wife,  which  would  be  defeated,  and  a  great  inequal- 
ity would  be  produced  among  his  children  and  grand  children, 
by  adopting  the  rule  of  a  division  ^:)er  capita,  it  teas  held  that  the 
court  should,  in  the  absence  of  express  words,  or  a  necessary  im- 
plication to  the  contrary,  apply  the  rule  of  a  division  per  stirpes. 
Bivens  v.  Phijh\  2  Jones,  43(>. 

59.  The  state  of  a  testator's  family,  as  well  as  that  of  his  prop- 
erty, may  be  shown  and  considered  in  puttiiig  a  construction 
upon  his  will.     Ibid. 

60.  Where  a  father,  on  the  marriage  of  his  daughter,  put  into 
the  possession  of  her  and  her  Iiusband  certain  slaves,  for  their 
advancement  in  life,  and  then  made  a  will,  which  did  not  notice 
the  slaves  expressly  in  any  legacy  to  such  daughter,  but 
there  was  an  evident  intention  of  the  testator  to  provide  equally 


856  LEGACY— I. 

for  all  his  children,  eeven  in  number,  and  ^reat  inequality 
would  be  produced  among  his  children  by  defeating  the  gifts  to 
the  daughter  in  question,  and  two  other  children  similarly  situa- 
ted, it  was  held  that,  as  the  making  of  the  will  prevented  the 
parol  gifts  of  the  slaves  from  operating  as  advancements,  a  clause 
in  it,  givmg  all  his  negroes  "not  heretofore  disposed  ot "  to  six 
of  his  children,  among  whom  was  not  the  daughter  in  question, 
should  be  construed  to  confirm  to  her  and  her  husband  the  slaves 
"which  her  father,  the  testator,  had  put  in  their  possession.  Laic- 
rc7iee  v.  Blitchell,  3  Jones,  190. 

61.  A  testator,  after  disposing  of  a  female  slave  absolutely  to 
one,  may  give  her  increase  to  another.  Carroll  v.  Hancock,  '6 
Jones,  471. 

62.  Where  a  life  estate  in  personalty  is  given  to  one,  and  then 
over  to  a  class,  as  to  the  children  oi  a  particular  person,  all  the 
children  who  may  be  born  during  the  continuance  of  the  life  es- 
tate will  take,  and,  if  one  of  them  die  during  the  continuance  of 
the  life  estate,  his  or  her  interest  will  vest  in  his  or  her  personal 
representative.  When  there  is  no  life  estate,  an  immediate  be- 
quest to  a  class  will  go  only  to  those  who  answer  the  description 
at  the  death  of  the  testator.     Ihld. 

63.  A  provision  in  a  will,  that  a  certain  female  slave  "will  be 
set  free,  if  she  behaves  herself  as  a  good  character  should  do,  to 
be  under  the  care  of  my  daughter  J  and  her  daughters,"  con- 
veys no  interest,  either  legal  or  equitable,  to  the  daughters  of  J. 
Malloy  V.  BIcNair,  4  Jones,  297. 

64.  The  grammatical  construction  of  a  clause  in  a  bequest  will 
be  disregarded,  if  it  seem  to  be  opposed  to  the  testator's  inten- 
tion. Hence,  where  one  bequeathed  a  female  slave  to  her  son  A 
for  life,  with  remainder  to  his  son  B,  and  added  "and  if  the  said 
woman  hath  increase,  to  be  equally  divided  among  all  Im  chil- 
dren," and  it  appearing  that  when  the  will  M^as  wiitten  A  had 
several  children  besides  B,  but  at  that  time  B  had  no  children, 
though  he  had  some  afterwards,  it  was  held  that  the  pronoun 
"his"  referred  to  the  children  of  A,  and  not  to  those  of  B.  Hcb- 
erts  V.  Watson,  4  Jones,  319. 

65.  A  bequest  of  a  fund  of  personalty  to  A  and  B  and  "their 
lawfully  begotten  heirs,"  there  being  nothing  in  the  will  to  con- 
trol the  technical  meaning  of  the  words,  gives  the  fund  to  them 
absolutely,  to  the  exclusion  of  a  child  of  B,  by  force  of  the  rule  in 
Shelly 's  case.      Worrell  v.  Vinson,  5  Jones,  91. 

Q^.  Where  a  bequest  is  made  to  a  trustee  in  trust  for  A  and  B 
and  "their  lawfully  begotten  heirs,"  it  is  subject  to  the  same 
construction  as  if '  the  bequest  had  been  of  the  legal  estate,  be- 
cause the  trust  is  an  executed  and  not  an  executory  one.     Ihid. 

67.  Where  a  testator,  a  ter  giving  his  estate  to  his  wife  for 
life,  and  then  over  to  a  nephew  and  niece,  added,  "in  the  event 
of  my  wife's  death,  having  and  leaving  an  heir,  provided  it  at- 


LEGACY— I-II.  857 

tains  maturity,  the  above  will  is  revoked,  and  my  property  is  to 
be  divided  by  law,  between  my  wife  and  heir  or  heirs,"  it  was 
held  that  a  child  of  his  wife  by  a  second  husband  could  not  take 
under  the  bequest.     BJcGlnnis  v.  Harris.  7  Jones,  213. 

G8.  Where  a  father  gave  slaves  to  his  daughter  N,  by  his  will, 
adding  "which  I  intend  for  the  said  N.  or  her  issue,"  and  she 
had  illegitimate  issue  at  the  date  of  the  will,  but  no  legitimate 
issue,  and  died  after  her  father  without  having  had  any  legiti- 
mate issue,  it  li-as  lield,  that  the  bastard  children  could  not  take 
under  the  term  "issue,"  there  being  nothing  in  the  will  to  show 
that  illegitimate  issue  was  meant,  but  the  mother  took  an  abso- 
lute estate  in  the  slaves,  which  became  the  property  of  her  hus- 
band, ;/?i?-e  mariti.     Doc/gett  v.  Mosthj,  7  Jones,  587. 

69.  A  legacy,  given  immediately  to  a  class,  vests  absolutely  in 
the  persons  composing  that  class  at  the  death  of  the  testator; 
and  a  legacy  given  to  a  class,  subject  to  a  life  estate,  vests  in  the 
persons  composing  that  class  at  th  e  death  of  the  testator,  but 
not  absolutely,  for  it  is  subject  to  open  so  as  to  make  room  for 
all  persons  composing  the  class,  not  only  at  the  death  of  the  tes- 
tator, but  also  at  the  termination  of  the  life  estate.  Mason  v. 
W/dfe,  8  Jones,  421. 

70.  Where  one  of  the  class  was  living  at  the  death  of  the  tes 
tator,  but  died  before  the  expiration  of  the  life  estate,  his  interest 
in  the  legacy  is  not  divested  by  his  death,  but  devolves  upon  his 
personal  representative.     Ibid. 

71.  Where  a  person,  by  his  will,  gave  "all  his  slaves,"  equal- 
ly to  be  divided  amojig  his  children,  and  afterwards  by  a  deed 
gave  two  of  them,  by  name,  to  one  of  his  children,  it  was  held, 
that  it  was  not  a  case  of  ademption,  nor  for  an  election,  but  that 
the  donee  of  the  two  slaves  comes  in  for  an  equal  share  of  the 
other  slaves.     3IiUsaps  v.  McLean,  1  Winst.,  80. 

See  (Legacy — Whether  vested,  contingent  or  executory.) 

n.       WHETHER    VESTED,    CONTINGENT    OR    EXECUTORY. 

1.  Where  a  testator  gave  to  his  wife  a  female  slave,  and  to 
one  of  his  daughters  a  child,  then  born,  of  the  said  slave,  and  then 
gave  to  another  daughter  the  first  child  which  said  slave  should 
have,  and  further  directed  that  in  event  the  said  slave  should  have 
three  children  more,  so  that  his  two  daughters  should  have  two 
apiece,  all  the  other  children  she  might  have  should  belong  to 
his  two  sons,  ]ield  that  as  soon  as  the  childi-en  were  born  they 
vested  in  the  daughters,  and  that  the  death  of  one  of  them  would 
not  entitle  the  daughters'  to  another  child  in  the  place  of  the  one 
dying,  tor  the  children  born  subsequently  to  the  first  three  be- 
came vested  in  the  sons,  and  could  not  be  divested  by  the  death 
of  one  of  the  three  children.  Settle  v.  Wordlaiv,  1  Car.  L.  R., 
371,  (40.) 


858  LEGACY— II. 

2.  A  testator  gave  to  his  wife  "  all  the  property  he  received  with 
her;"  and  the  rest  of  his  estate  to  her  until  his  son  should  come 
to  lawful  age,  when  the  same  should  belong  to  hira;  and,  in  the 
mean  time,  directed  that  his  son  be  educated  and  maiidained  at 
a  reasonable  expense  out  of  his  estate,  in  proportion  to  the  value 
of  all  the  pi-operty  and  its  general  profits  and  income  "  The 
widow  died,  leaving  her  son  surviving  her,  and  he  died  before 
he  attained  twenty-one  years  of  age :  Held  that  the  legacy  to  the 
son  vested  in  him  on  the  death  of  the  testator,  and  did  not  lapse 
by  his  death  before  twenty-one.  Johifiun  v.  Baker^  3  Murph., 
318. 

3.  The  word  "when,"  standing  by  itself  and  applied  to  legfi- 
cies,  is  a  word  of  coiitingency,  but  an  exception  is  ma('e  to  the 
rule,  where  the  testator  has  disposed  of  the  intermediate  iiiter- 
est,  either  to  a  stranger  or  the  legatee.     Ibid. 

4.  A  testator  gave  as  follows:  "  I  lend  to  my  wife  the  plaritation 
whereon  I  now  live,  and  after  her  decease  1  give  the  said  land  to 
my  child  that  my  wife  is  now  pregnant  with,  if  a  boy,  and  if  it 
shoidd  be  a  girl^  I  give  the  land  to  my  son,  H.,  upon  his  paying 
to  the  said  child  one  iiundred  pounds:"  held  that  the  legacy  of 
one  hundred  pounds  to  the  child,  it  being  a  girl,  was  not  paya- 
ble until  the  death  of  the  testator's  widow.  Justices  of  Wayne 
V.  Cranford.,  1  Hawks,  241. 

5.  A  bequest  in  the  following  terms:  "  It  is  my  will  that  my 
negroes  shall  be  kept  together  until  my  children  arrive  to  full 
age  or  marry,  then  to  be  di^^ded  between  my  beloved  wife  and 
children,  share  and  share  alike,  equally;  and  it  is  my  desire  that 
whenever  any  af  my  children  arrives  at  full  age  or  marries,  that 
his  or  her  share  of  my  estate  be  delivered  to  him  or  her  imme- 
diately," was  held  to  give  a  present  vested  interest  to  each  child 
in  his  or  her  share  of  the  negroes.  Clancy  v.  Dickey.,  2  Rawks, 
497. 

6.  A  testator  gave  by  will  liis  property  to  his  two  children,, 
and  if  either  of  them  should  die,  witliout  leaving  issue,  the  whole 
of  his  estate,  both  real  and  personal,  to  go  to  the  survivor.  B,. 
one  (^f  the  children,  npon  a  bill  for  an  account  against  the  exeo- 
ntor,  obtained  a  decree  for  a  sum  of  money,  and,  in  part  perform- 
ance, accepted  certain  slaves  which  were  not  of  the  property  of 
the  testator.  On  the  death  of  B,  without  issue,  the  survivor  was 
held  not  to  be  entitled  to  recover  these  slaves  from  a  stranger,  to 
whom  thev  had  been  bona  fide  sold  by  B.  iSo/.t'ieriand  v.  Webh, 
4  Dev.,  245. 

7.  Where  a  testator  gave  specific  legacies  to  her  sons  W,  D  and 
S,  and  after  directing  the  residue  to  be  divided  among  them,  pro- 
ceecle  :  "but  in  case  either  of  my  sons  D  or  S  die,  leaving  no  law- 
ful issue  then  living,  then  my  son  W  and  the  survdving  one  to 
have  his  part  of  all  that  is  willed  to  him,  and  in  case  they  should 
both  die,  leaving  no  lawful  issue  then  living,  then  my  sou  W  to 


LEGACY— II.  859 

have  the  -whole  of  what  I  have  willed  to  each  of  them,"  and  S 
died,  leaving  issue,  and  then  D  died  without  issue;  it  was  held, 
1st,  that  the  specitic  legacy  given  D,  as  well  as  his  share  of  the 
residue,  was  subject  to  the  limitation  over;  2d,  that  W  alone 
succeeded,  as  there  was  no  limitation  in  favor  of  the  issue  of  S. 
Ormond  v.  Gibbs,  4  Dev.,  504. 

8.  In  a  bequest  of  personal  pr^  perty  to  B.  R.,  "and  if  he  die 
leaving  no  heir  lawfully  begotten  of  his  body"  then  over,  the 
limitation  is  not  too  remote,  but  is  good  as  an  executory  devise. 
Milkr  V.   Wdliams,  2  Dev.  and  Bat.,"  500. 

9.  Where  a  testator,  after  a  bequest  of  slaves  to  each  of  his 
three  grand-sons  "and  their  heirs  forever,"  and  leaving  them  his 
executors  and  residuary  legatees,  bequeathed  to  his  grand- 
daughter as  follows:  "  I  give  to  ray  grand-daughter,  J.  T.  A  ,  ten 
negroes,  by  name  Jane,  &c.,  to  have  and  enjoy  the  said  negroes 
during  her  natural  life,  and  at  her  death  to  be  equally  divided 
amongst  the  heirs  of  her  body,  or  in  case  she  should  die  without 
a  surviving  child  or  children,  that  the  said  negroes,  with  their 
increase,  sliall  return  to  my  three  grand-sons  as  above  named,  or 
to  their  heirs;  it  ivom  held  ihat  the  grand-daughter  took  only  a 
life  estate  in  the  slaves,  with  a  contingent  remainder  to  such  of 
her  children  as  should  be  living  at  her  death.  Allen  v.  Pass,  4 
Dev.  and  Bat.,  77. 

10.  In  a  nequest  of  slaves  to  a  married  woman  for  life,  and 
then  to  all  tlie  children  which  she  may  have  at  the  time  of  her 
death;  and  in  case  "any  of  them  should  die  before  marriage  or 
arrival  at  full  age,"  then  the  share  of  such  to  the  survivors  of 
them;  "and  if  all  of  them  die  before  marriage  or  arrival  to  full 
age,"  then  over  to  other  persons;  the  word  "or"  will  be  con- 
strued "  and,"  and  the  limitation  over  will  not  be  too  remote,  but 
will  take  effect  upon  the  death  of  the  mother,  and  of  all  her  chil- 
dren, mider  age  and  unmarried.  MonUjomcry  v.  JVynns,  4  Dev. 
and  Bat.,  527. 

11.  The  interest  in  an  executory  bequest  is  transmissible  to 
the  executor  of  one  dying  before  the  happening  of  tlie  contin- 
gency, upon  which  it  depends.     Lewis  v.  Smith,  1  Ired.,  145. 

12.  A  bequest  by  a  testator,  "in  the  event  of  his  having  no 
heirs,"  to  his  niece,  is  good  at  common  law,  and  vests  a  title  in 
the  niece,  if  the  testator  die  without  children.  Tillimm  v.  Sin- 
clair, 1  Ired.,  183. 

13.  A  testator  bequeathed  certain  negroes  to  his  three  children, 
J.,  S.  and  N.,  and  then  proceeded  as  follows:  "  In  case  either  of 
my  said  children  should  die  without  heir  lawfully  begotten,  it 
is  my  wish  that  the  property  sliould  be  equally  divided  among 
the  children  tlten  living,  whether  J.,  S.  or  X.  J.  died  first,  and 
then  N.  died  without  issue,  leaving  S.  surviving  :  Held,  that 
under  this  limitation  S.,  the  surviving  child,  took  the  property 
belonging  to  N.     Fortescue  v.  Satterthwaite,  1  Ired.,  5G6. 


860  LEGACY— II. 

14.  A  testator  bequeathed  as  follows:  "I  leave  the  whole  of 
my  other  estate,  as  well  negroes  as  goods  and  chattels,  to  be 
equally  divided  between  mylour  children,  A.,  B.,  C.  and  D.,  and 
for  my  executors  to  have  it  appraised  and  pay  off  each  child's 
part  as  they  shall  come  to  age,  the  boys  to  have  their  part  at  the 
age  of  twenty-one  years,  and  the  girls  to  have  their  part  at  the 
age  of  eighteen  years,  and  if  either  of  my  children  die  without 
heir  lawfully  begotten,  then  his  or  her  part  to  be  equally  divided 
between  my  surviving  children  and  their  heirs  forever."  A. 
died  first,  leaving  children,  and  then  B  died  leaving  no  children. 
It  WIS  held  that  the  limitation  over  in  the  will  was  not  too  remote; 
that  on  B.'s  death  without  issue,  his  share  became  vested  in  C. 
and  D.,  who  survived  him;  and  that  as  A.  did  not  survive  him, 
no  part  of  such  share  vested  in  the  personal  representative  or 
the  children  ot  A.      Threadgill  v.  Ingram,  1  Ired.,  577. 

15.  A  testator  bequeathed  as  follows:  "  I  give  to  my  son,  W., 
certain  negroes  nanicvl,  &c.,  to  him,  his  heirs  and  assigns  for- 
ever; but  in  case  he  should  not  arrive  at  the  age  of  twenty-one 
years  or  marry,  my  desire  is  that  my  daughter  S.  have  the  afore- 
said negroes."  S.  married  and  died  in  the  Kfetime  of  W.,  who 
afterwards  died,  unmarried  and  under  age.  It  icas  held  that  the 
contingent  interest,  thus  bequeathed  to  S.  in  these  negroes,  was 
transmissible  to  her  representatives,  and  on  the  death  of  W., 
under  age  and  unmarried,  became  a  vested,  absolute* interest  in 
her  administrator,  and,  that  this  construction  was  not  affected 
by  the  f^ict  that  in  another  clause  the  testator  gave  other  negroes 
to  S.,  Avitha  like  contingent  limitation  to  W.,  in  the  event  of  S.'a 
dying  unmarried  and  under  age.     Jacocks  v.  Akdlen,  2  Ired.,  162. 

16.  A  testator  bequeathed  as  follows:  "I  lend  to  my  daughter, 
N.  E.  M.,  the  following  property,  to  wit,  negroes  Lewis,  &c.,  and 
one  bed  and  farin"ture,  &c.  If  my  daughter,  N.  E  M.,  should 
depart  this  life  without  issue,  then'  it  is  my  will  that  her  hus- 
band, W.  C.  I\I.,  should  have  one-half  of  the  property  I  have  lent 
to  her;  but  the  property  is  to  be  held  in  trust  by  my  executors 
until  the  death  of  my  daughter,  N.  E.  M.,  and  then  her  half  of 
the  property  is  to  be  equally  divided  between  her  brother  J.  and 
her  two  sisters  M.  and  K."  W.  C.  M.  died,  after  the  testator, 
leaving  his  wife  N.  E.  M.  surviving  him,  and  then  she  died  with- 
out issue.  It  ivas  held  that  W.  C.  M.  took  a  contingent  interest 
in  remainder  in  one-halt  of  the  property,  which,  upon  his  death, 
was  transmitted  to  his  administrator,  and  that  upon  the  death 
of  his  Avidow,  N.  E.  M.,  without  issue,  his  administrator  had  a 
right  to  recover  it.     3Toore  v.  Barrow,  2  Ired.,  436. 

17.  A  testator,  in  1836,  bequeathed  as  follows;  "The  balance 
of  my  estate  to  be  equally  divided  between  my  wife  and  children," 
and  in  another  clause,  "  my  wish  is,  should  either  of  my  children 
die  without  leaving  an  heir  begotten  by  their  body  or  bodies, 
that  the  survivor  or  survivors  have  the  whole;"  and  in  another 


LEGACY— II.  861 

clanse  "  should  rny  children  all  die  withont  leaving  an  heir, 
begotten  by  their  bodies,  my  wish  is  that  my  brother  T.  should 
heir  the  whole  of  my  estate  as  allotted  to  my  children."  The 
testator  died,  leaving  three  children,  M.,  0.  and  E.,  of  whom  M. 
died,  leaving  a  child,  and  afterwards  0.  died  without  issue,  lea- 
ving E.  surviving.  It  teas  held  that  all  the  estate  of  O.  so  dying, 
became  A'ested  in  E.,  her  onlj'-  surviving  sister,  and  that  the  child 
ofM.  was  not  entitled  to  any  share  of  it.  Skinner  v.  Lamh,  3 
Ired.,  155. 

18.  Where  a  legacy  is  given  to  "  children,"  as  a  class,  payable 
at  a  future  day,  any  child  who  can  entitle  itself  under  the  des- 
cription at  the  time  when  the  fund  is  to  be  divided,  may  claim  a 
share  thereof      Wallis  v.  CoireJ],  3  Ii-ed.,  323. 

19.  Before  the  act  of  1827,  a  bequest  of  personal  property  to 
*'  A  and  his  heirs,"  and  "  if  he  should  die  and  leave  no  lawful  is- 
sue," then  over  to  B  was  a  good  executory  limitation  to  B,  to 
take  effect  if  A  died  without  leaving  any  issue  living  at  the 
time  of  his  death.  And  if  B  died  betore  A,  this  executory  in- 
terest was  so  far  vested  that,  on  the  happening  of  tlie  contingen.- 
cy,  the  personal  representative  of  B  would  take  it.  liobaids  v. 
Jones ^  4  Ired.,  53. 

20.  Where  a  testator,  before  the  act  of  1827,  bequeathed  as 
follows:  "I  give  to  my  son  J.  W.,  all  my  negroes,  to  him  and 
his  heirs  lawfully  begotten  of  his  body;  but  if  he  should  die 
without  lawful  heirs,  then  my  wish  is,  to  S.  W^,  to  him  and  his 
heirs  for  ever,"  it  was  held,  tliat  the  limitation  over  was  too  re- 
mote, and  that  J.  W.  took  the  absolute  estate  in  the  slaves. 
Lister  v.  Shnner,  4  Ired.,  57. 

21.  Wliere  there  is  a  bequest  in  a  will  to  a  class  of  persons,  as 
to  children,  courts  are  always  anxious  to  effectuate  the  intention 
of  the  testator,  by  including  as  many  persons  answering  the 
description  as  possible.     3Icai\s  v.  3Jtares,  4  Ired.,  192. 

22.  When  legacies  are  given  to  children,  payable  or  to  be  di- 
vided at  some  period  subsequent  to  the  testator's  death,  then 
those  persons,  wdiether  born  before  or  after  the  making  of  the 
will,  or  before  or  after  the  death  of  the  testator,  who  come  into 
being  before  the  period  of  division,  &c  ,  and  answer  the  descrip- 
tion at  that  time  are,  entitled.     Jl.'id. 

23.  In  construing  a  father's  will,  although  the  division  majr 
not  be  postponed,  a  bequest  to  his  own  children  will  be  held 
to  include  all  of  them  in  being  at  his  death,  unless  it  be  evident 
upon  the  will,  that  the  testator  n  eant  the  provision  only  for  those 
living  at  the  date  of  the  will.     Ibid. 

24.  A  testator  bequcuitlied  certain  slaves  to  three  of  his  daugh- 
ters and  to  a  child,  then  in  venire  -sa  mere,  to  be  divided  at  a  deB- 
ignatcd  period,  and  then  directed,  "And  if  either  of  my  daugh- 
ters, or  the  child  my  wife  now  appears  pregnant  with  as  afore- 
said, should  die  after  the  division,  without  lawful  issue,,  it  is  my 


862  LEGACY— IT. 

Avill  that  such  part  slioiild  be  equally  divided  between  my  wife 
and  my  snrviying  children."  The  child  born  afterwards  died 
after  the  division  and  without  issue,  leaving  his  mother,  and  two 
of  the  daughters  surviving  him.  It  tvas  //eWthat  the  limitation 
over  was  good  as  to  the  mother  and  the  two  surviving  daugh- 
ters, but  that  it  did  not  extend  to  the  children  of  one  of  the 
daughters  who  had  died  before  the  son,  Long  v.  iY  rom,  4 
Irecl,  255. 

25.  A  testator,  by  his  will  made  in  1808.  bequeathed  certain 
personalty  to  four  brothers  and  sisters,  to  them,  their  heirs  and 
assigns,  and  then  added,  ''  if  either  of  them  should  die  without 
any  heir  in  tuorriage,  then  their  legacy  to  their  own  brothers  and 
sisters,"  it  was  held  tliat  the  remainder  over  was  too  remote,  and 
was  therefore  void.      Cox  v.  Marks,  5  Ired.,  oGl. 

26.  A,  having  four  children,  bequeathed,  since  the  act  of  1827, 
certain  i-livesto  his  daughter  N.,  then  a  married  woman,  and  if 
she  died  without  issue,  one-half  to  her  husband,  and  the  other 
half  to  her  brothers  and  sisters.  After  the  assent  to  the  legacy, 
N.  died  without  issue,  leaving  a  brother  and  two  sisters,  one  of 
whom  was  then  a  married  woman,  but  her  husband  died  soon 
afterwards.  It  was  held  that  the  husband  had  a  vested  legal  in- 
terest in  one-tliird  of  the  moiety  of  the  said  slaves,  which,  on  his 
death,  passed  to  his  administrator,  Skinner  v.  Barrow,  5  Ired., 
414. 

27.  A  bequest  or  slaves  to  A,  and  "after  her  death  to  be  equal- 
ly divided  ])etween  the  heirs  of  A.'s  body,"  is  a  good  limitation 
to  the  (children  of  A.     Miles  V.  Allen.  6  Ired.,  88. 

28.  A  testator  devised  and  bequeathed  as  follows:  "  I  give  to 
my  son,  B.  D.  H.,  all  my  estate  after  settling  my  debts,  except 
$300.  If  B.  D.  H.  does  not  live  till  of  age,  then  I  dispose  of  ray 
estate  as  follows :  I  give  to  my  sisters,"  &c,  B.  D,  li.  died  under 
age,  and  it  na<  held  that  he  was  entitled  to  the  profits  of  the  es- 
tate, which  consisted  of  land,  negroes  and  other  chattels,  (except 
the  $300)  during  his  life.     Albiitton  v.  ^t,tt!m.  !>  Ired.,  389. 

29.  A  bequest  was  as  follows:  "  I  give  to  E.  and  S.  all  the  ne- 
groes 1  ^ent  to  my  daughter  P,,  to  them  and  their  heirs  forever; 
and  if  they  should  die  without  an  heir,  for  said  negroes  to  be 
equidly  divided  between  H.  and  all  my  children."  E.  married 
the  defendant,  and  died  without  leaving  a  child.  S,  married  the 
|)laintiff,  is  still  living,  and  has  several  children,  and  it  tvas  held 
that  E.  and  S.  took  vested  estates;  that  cross  remainders  could 
not  be  implied,  and  that  E.'s  estate  ccmld  only  be  defeated,  upon 
the  contingency  of  S.'s  dying  leaving  no  child.  GoMeld  v.  Jii.b- 
erts,  13  Ired.,  277. 

30.  A  testator  directed  that  his  whole  estate  was  "  to  remain 
together  as  a  joint  stock  of  my  wife  and  children,  and  my  farrn 
continue  under  the  management  of  my  executor,  for  their  sup- 
port and  education,  and  that  each  one,  if  a  son,  receive  his  dis- 


LEGACY— II.  863 

tributive  share,  when  he  arrives  at  the  age  of  twenty  one  years," 
<!tc.  D.,  one  of  tlie  sons,  died  at  the  age  of  six  years,  and  the 
court  having  held  that  the  widow,  on  her  marrying  again,  had 
■a  right  to  withdraw  her  share  from  tlie  joint  stock,  the  adminis- 
trator of  D.  claims  D.'s  share  as  demandable  at  his  death,  or  his 
aliquot  proportion  of  the  income  thereafter  accruing;  it  icaslield 
that  he  was  entitled  to  neither,  the  share  not  being  v.[emandable 
until  the  time  when  D.  would  have  attained  twenty-one,  an  I  the 
income  belonging  to  the  other  legatees,  exclusive  of  the  widow. 
Pttway  V.  Baker,  Busb.,  2(38. 

31.  A  bequest  of  slaves  to  one  for  life,  and  at  his  deatli  '■  to 
his  heirs  lawfully  begotten  of  his  body,  and  for  want  of  such 
heirs,"  to  certain  persons  designated,  was  held  to  be  a  good  lim- 
itation to  such  persons,  under  the  act  of  1827.      Sanderlin\.  Ue- 

ford,  2  Jones,  74     (See  Rev.  Code,  cli.  43,  sec.  3.) 

32.  A  bequest  of  a  contingent  interest  to  children,  without 
any  reference  to  their  death  during  the  pendency  of  the  contin- 
gency, vest8  such  an  interest  as  survives  them  on  their  dying 
before  the  happening  of  the  contingent  event,  and  goes  to  their 
personal  j-epresentatives.     Ibid. 

33.  Where  a  testator  gave  by  will  certain  slaves,  also,  half  a 
dozen  table  .spoons  and  one  dozen  tea  spoons,  to  his  three  daughters, 
with  a  provision  that  if  either  of  them  should  die  after  the  di- 
vision, without  lawful  issue,  her  part  should  be  equally  divided 
between  his  wife  and  the  surviving  children ;  it  tvas  held,  that 
the  limitation  over  ot  the  slaves,  as  well  as  of  the  spoons,  was 
good,  notwithstanding  there  was  a  reservation  to  his  wife  of  a 
life  estate  in  one  of  the  slaves  named.  Long  v.  JVrigld,  2  Jones, 
140. 

34.  AVhere  a  testator  bequeathed  slaves  to  his  five  children. 
and  added,  "in  case  any  of  my  aforesaid  children  shall  die  with- 
out a  lawful  heir,  begotten  of  his  or  her  body,  then  his  or  her 
share  to  be  equally  divided  among  the  survivors;"  and  three  of 
the  children  having  died,  and  their  estates  been  disposed  of,  it 
vas  heh!,  upon  the  death  of  the  fourth  without  issue,  that  his 
share  had  become  absolutely  vested  in  him  and  went  to  his  per- 
sonal representative,  and  did  not  survive  to  his  sister,  who  was 
the  last  survivor  of  the  children.      Wcbh  v.  IVeeks,  3  Jones,  279. 

35.  A  testator  bequeatlied  two  slaves  to  his  daughter,  and  re- 
quested that  she  should  reside  with  her  mother  wliile  she  re- 
mained single,  and  then  added  "if  she  should  die  single,  then 
the  property  willed  to  her"  to  go  over  to  others.  The  daughter 
married,  but  survived  her  husband  and  then  died,  and  it  was 
held  that  she  did  not  "die  single"  within  the  meaning  of  the  tes- 
tator, and  that,  therefore,  the  limitation  over  did  not  take  effect, 
Lmhhy  V.  LaahU'ii,  3  Jones,  414.     • 

30.  Where  a  testatov  directed  that,  as  any  one  of  his  children 
should  come  of  age  or  marry,  certain  slaves  should  be  divided 


8^  LEGACY— II. 

intO'  lots  and  tlie  child  so  coming  of  age  or  marrying  should  hav"6> 
a  lot  assigned  to  him  or  her,  the  remainder  of  the  slaves  to  con-- 
tinue  in  common  until  another  child  came  of  age  or  married, 
when  another  lot  v/as  to  be  assigned,  and  so  on;  and  then  the 
testator  added  these  words,  "and  the  negroes  thus  drawn  shall 
become  absohitely  the  property  of  the  heir  drawing  the  same, 
and  shall  exclude  the  said  heir  from  any  iurther  claim  in  this 
stock  of  negroes,  unless  some  one  of  the  heirs  should  die  without 
legal  issue,  in  which  case  the  surviving  ones  shall  inherit  equal- 
ly ;"  it  'Wa.s  held  that  as  each  lot  was  assigned,  it  vested  absolute- 
ly in  the  child  receiving  it,  and  that  the  provision  for  a  division 
of  a  share  of  a  child  dying  without  issue  applied  only  to  a  child 
so  drying  before  any  lot  had  been  assigned  to  him  or  her.  Mc- 
Eac'hin  v.  McRae,  5  Jones,  19. 

37.  After  a  gift  of  property  to  the  testator's  wife,  it  was  added : 
"  But  should  my  wife  die  without  heirs  of  her  body,  then  at  her 
decease,  the  whole  of  the  property  to  go  the  use  and  benefit  of 
my  daughter,"  and  it  loashdd  the  will  being  made  before  the  act  of 
1827,  that  the  limitation  over  was  restricted  to  the  wife's  death, 
and  therefore  not  too  remote.  But  there  being  another  provis- 
ion in  the  will  that  should  the  daugliter  "  die  previous  to  the 
death  of  my  said  wife,  and  without  marrying  or  having  heirs  of 
her  body,  that  then  the  land  and  property  which  I  have  be- 
queathed to  her  shallrevert  beak"  to  the  wife;  it  was  held,  from 
those  and  some  other  expressions  favoring  the  same  view,  that 
the  limitation  to  the  daughter,  at  the  wife's  death,  was  not  to 
take  effect  unless  the  wife's  death  was  precedent  to  that  of  the 
daughter,  and  that,  as  the  wife  survived  the  daughter,  the  prop- 
erty" given  her  became  absolute  at  the  death  of  the  daug'hter. 
Baker  v.  Pender,  5  clones,  350. 

38.  A  transposition  of  the  sentences  of  a  will  is  allowed  by  the 
rules  of  construction,  when  the  manifest  intention  of  the  testa- 
tor requires  it.     Ibid. 

39.  A  limitation  of  a  female  slave  and  her  issue  over  to  a  per- 
son, upon  the  contingency  that  the  first  taker  ''shall  die  under 
age  or  witliout  leaving  issue,"  will  fail  if  the  first  taker  arrive  at 
the  age  of  twenty-one  years,  although  he  may  afterwards  die- 
without  issue.     Black  v.'  McAuley,  5  Jones,  375. 

40.  A  bequest  of  slaves  to  a  daughter,  with  a  provision  that 
"  if  she  should  have  issue  living  at  her  death"  then  to  such  issue, 
but  "if  she  should  die  without  leaving  lawful  issue"  then  over, 
VMS  held,  upon  her  dying  without  leaving  children,  to  be  a  good 
limitation  in  remainder."    Newnan  v.  Miller,  7  Jones,  51(5. 

41.  A  testator,  in  18151,  bequeathed  a  negro  woman  to  his 
daughter  "  and  her  heirs  of  her  own  body  forever,  and,  if  none,  to 
return  after  her  death"  to  the  rest  of  the  testator's  children 
equally,  it  was  held  that  the  limitation  over  to  the  testator's  oth- 
er children  was  not  too  remote.     Blake  v.  Fage,  1  Winst.,  255.. 


LEGACY— 11-111.  665 

42.  Tliese  words  in  a  will,  "  I  give  to  my  daughter  S.  four 
?;laves,  named,  &c.,  to  her  and  her  heirs;  provided,  nevertheless, 
if  the  said  S.  die  childless,  then  it  is  my  desire  that  my  son  A. 
move  back  to  this  comity,  and  to  have  them,  but  not  to  take 
them  to  any  other  part  of  the  country,"  vests  the  slaves  in  A. 
absolutely,  the  request  to  move  back  being  precatory  only,  not 
mandatory.     Harris  v.  Hearne,  2  Winst ,  92. 

See  (Husband  and  Wife — Husband's  interest  in  his  wife's  es- 
tate, &c.,  26.)  (Legacy — Construction — What  passes  and  who 
takes,  2 l-2a-24-29-35-36-42-44--6 1-69-70.) 

HI.       OF    THE    ASSENT   OF   THE    EXECn^OR   AND    ITS    EFFECT. 

1.  Where  there  is  a  legacy  for  life  or  years,  and  no  remainder 
limited  over,  the  assent  of  the  executor  enures  oidy  to  the  benefit 
of  the  particular  tenant;  and  the  executor  is  entitled  to  the 
possession  of  the  chattel  again  after  the  expiration  of  the  par- 
ticular interest.  Anoiiyinous,  2  Hay.,  161,  (346,)  S.  P.  Jones  v. 
Masters,  3  Murph.,  110,  Black  v.  Bay,  1  Dev.  and  Bat.,  334. 
JIcKerdey  v.  Scolf,  4  Jones,  197. 

2.  The  assent  of  executors  to  the  first  taker  is  an  assent  to 
all  subsequent  takers  of  a  legacy,  limited  over  by  way  of  lemain- 
der  or  executory  devise.  Dunwoodie  v.  Carrington,  2  Car.  L.  I*. 
469,  (355.) 

3.  Biit  this  rule  does  not  prevail,  when,  after  the  death  of  the 
first  taker,  the  executor  has  a  trust  to  perform  arising  out  of  the 
property,  which  therefore  must  be  subject  to  his  control,  and 
lie  must  have  the  legal  title.  Ibid.  S.  P.  Allen  v.  Watson,  1 
Murph.,  189. 

4.  An  assent  to  a  legacy  may  be  presumed  from  the  executor's 
holding  it  for  five  years,  claiming  it  as  next  uf  kin  of  the  leg- 
atee, a  .d  selling  it  as  his  own.     3Ierrit  v.   Windley,  3  Dev.,  399. 

5.  An  assent  to  the  legacy  of  a  slave  by  the  executor  of  a  will, 
made  by  a  fhne  covert  uiuler  a  power,  does  not  vest  the  legal 
title  in  the  legatee,  although  the  ti'ustee  in  the  marriage  articles 
be  also  the  executor,  unless  he  assent  by  deed  or  by  actual 
delivery.     Ihid. 

6.  If  a  legatee  take  possession  of  property,  claiming  it  under 
the  will,  and  retain  it  for  many  years,  the  assent  of  the  executor 
to  the  legacy  mav  be  presumed.  IVhite  v.  White,  4  Dev.  257,  S. 
1*.  and  S.  C',  1  Dev.  and  Bat.,  260. 

7.  If  a  testator  by  his  will  forgive  a  debt,  the  assent  of  the 
executor  is  necessary,  before  the  debt  is  extinguished.  Ches/iire 
v.  Cheshire,  2  Dev.  and  Bat.,  254. 

<^.  An  assent  to  a  legacy  hy  an  executor  may  be  presumed 

i'rom  his  acts  or  declarations,  as  well    as  be  expressly  proved; 

Ijut  where  upon  a  bequest  of  a  pocket  book  and  its  contents,  the 

executor  estimated  the  amount,  and  stated  that  that  was  all  the 

13* 


866  LEGACY— III. 

legatee  took  under  the  will,  it  ivas  held  to  be  not  in  law  an 
assent,  but  only  a  fact  from  which  it  might  be  presumed.     Ibid. 

9.  Where  a  testator  bequeathed  a  negro  woman  to  his  wife  for 
life,  and  if  the  woman  should  have  another  child,  then  after  his 
wife's  decease  that  his  daughter  should  have  the  child,  it  was  held 
that  the  assent  of  the  executors  to  the  legacy  of  the  negro 
woman,  to  the  wife  for  life,  was  an  assent  to  the  bequest  of  the 
clnld  to  the  daughter,  although  sucli  assent  was  given  before 
the  child  was  born.      Conner  v.  Satchwell,  4  Dev.  and  Bat.,  72. 

10.  An  assent  by  an  executor  to  a  bequest  for  life,  where  upon 
the  termination  of  the  life  estate  it  is  not  necessary  for  the  pur- 
poses of  the  will  that  the  executor  should  retake  possession  of 
the  tJiing  bequeathed,  operates  as  an  assent  also  to  the  ulterior 
bequests.  And  where  the  tenant  for  life,  who  is  himself  the 
executor,  retains  possession  of  the  thing  bequeathed  for  thirty 
years,  the  jury  not  only  may,  but  are  buund  to  infer  an  assent 
ito  the  bequest.     Lewis  v.  Smith,  4  Dev.  and  Bat.,  326. 

11.  Acquiescence  by  an  executor,  in  the  possession  or  sale  by 
the  legatee  for  life  of  the  thing  bequeathes,  furnishes  a  ground 
for  inferring  an  assent  to  the  ulterior  bequest.  But  where  the 
person  named  executor  in  the  will  refuses  or  neglects  to  accept 
t'^e  office,  no  acquiescence  on  his  part  or  act  of  his,  not  amount- 
ino-  to  an  act  of  administration,  will  justify  the  inference;  be- 
cause, in  order  thereto,  there  must  be  an  executor  to  assent. 
White  V.  fVhite,  4  Dev.  and  Bat.,  401. 

12.  Where  a  testator  bequeathed  certain  slaves  to  one  for  life, 
and  then  over  to  another  person,  and  the  legatee  for  life,  without 
any  renunciation  of  the  executors  named  in  the  will,  obtained 
letters  of  administration  with  the  will  annexed  upon  the  estate, 
and  took  possession  of  the  slaves,  and  retained  them  for  more 
than  thirty  years,  until  his  death,  it  was  held  that  the  jury  migl.t 
infer  an  assent  of  the  executors,  or  make  any  other  reasonable 
presinnption  of  fact,  to  uphold  the  right  of  the  legatee  in  re- 
mainder.    Leiois  V.  Smith,  1  Ired.,  145. 

13.  Where  a  person,  wlio  claimed  a  specific  legacy,  was  per- 
mitted by  the  executor  to  take  it  into  possession,  upon  an  agree- 
ment that  if  it  should  be  decided  that  he  was  not  entitled  to  it, 
it  should  be  returned  to  the  executor,  it  ivas  held  that  this  Avas  a 
sufficient  assent  to  the  legacy,  it  being  afterwards  determined 
that  the  claimant  was  entitled  under  th;e  will  to  the  legacy 
claimed.     Lillard  v.  Beynolds,  3  Ired.,  366. 

14.  Where  slaves  are  bequeathed  by  a  testator  to  his  widoAV 
for  life  or  widowhood,  and  after  her  death  or  marriage  to  be  di- 
vided among  her  and  her  children,  the  assent  of  the  executor  to 
the  legacy  vests  a  right  in  those  in  remainder,  so  that  an'executor 
de  bonis  non  cannot  recover  them.     Etheridge  v.  Bell,  5  Ired.,  87. 

15.  When,  in  a  suit  by  legatees  against  the  administrator  with 
the  will  annexed,  it  was  decreed  that  the  administrator  should 


LEGACY— III.  867 

deliver  to  three  of  the  four  legatees,  entitled  to  legacies  of  slaves, 
their  respective  slaves,  which  was  done,  and  as  to  the  other  share 
(the  legatee  being  in  parts  unknown,)  it  was  decreed  that  it 
•'  should  be  allotted  to  the  administrator,  &c.,  for  the  use  "  of 
such  legatee,  upon  the  trust  declared  in  the  Avill,  &c.,  and  the 
administrator,  under  this  decree,  kept  possession  of  tlie  share  of 
the  slaves  thus  allotted,  and  hired  them  out  and  deposited  the 
hires  in  court,  it  luas  held  that  this  amounted  to  an  assent  to  such 
legacy.     Bufalow  v.  Baarjli^  12  Ired.,  201. 

16.  An  executor  in  Virginia  has  no  right  to  assent  to  a  legacy 
of  property  situate  in  this  state,'  without  making  probate  of  the 
will,  and  taking  letters  testamentai-y  from  our  courts.  Stamps 
V.  Moore,  2  Jones,  80. 

17.  When  an  adverse  possession  of  a  chattel  specifically  be- 
queathed commences  after  the  death  of  the  testator,  the  executor 
may  assent  to  the  legacy  so  as  to  enable  the  legatee  to  sue  for 
it  in  his  own  name;  but  it  is  a  question,  whether  this  can  be 
done  when  the  adverse  possession  commenced  before  the  testa- 
tor's death.     Johnson  v.  Arnold,  2  Jones,  113. 

18.  An  executor  may  lawfully  assent  to  a  specific  legacy  be- 
fore the  debts  of  the  estate  are  paid.  Edneyx.  Bryson,  2  Jones, 
365. 

19.  The  assent  of  an  executor  to  a  specific  legacy  may,  under 
circumstances,  be  legitimately  implied.     Ibid. 

20.  If  the  executor  permit  a  slave,  bequeathed  by  the  testator 
to  his  daughter,  to  remain  with  her  at  the  late  residence  of  the 
deceased,  for  ten  years,  without  assuming  himself  any  control 
over  tlie  slave,  it  is  certainly  some  evidence  of  an  assent. 
Frjp.'t  V.  Roseman,  4  Jones,  130. 

21.  A  bequest  of  a  slave  for  the  life  of  the  legatee,  without 
any  limitation  over,  passes  only  a  life  estate  to  such  legatee  ; 
and  the  assent  of  the  executor  extends  no  further  than  such  life 
interest,  so  that  after  its  termination  he  may  recover  the  slave. 
JIcKinky  V.  Scott,  4  Jones  197. 

22.  Wliere  slaves  were  given  by  will  to  one  for  lite,  with  a 
limitation  over  to  another,  and  the  executor  assented  to  the  es- 
tate of  the  first  taker,  his  assent  to  the  ulterior  estate  will  be 
implied,  and  the  repudiation  of  the  legacy  by  the  first  taker 
will  not  do  away  with  the  effect  of  the  executor  s  assent  to  the 
succeeding  gift.     HotddHssv.  Thomas,  6  Jones,  537. 

23.  A  limitation  over  of  a  cliattel  interest,  after  the  expiration  of 
a  life  estate,  is  not  strictly  a  remainder,  but  an  interest  in  ftduro, 
created  by  an  executory  devise  of  a  distinct  property,  and  the 
rule,  that  the  assent  of  the  executor  to  one  is  au  assent  to  the 
other,  is  not  founded  on  the  idea  that  the  two  interests  consti- 
tute one  estate,  but  because,  it  being  the  executor's  duty  to  as- 
sent to  both,  when  it  is  made  to  the  first  estate  it  will  be  con- 


8()8  LEGACY— III-IV-V. 

sidered  as  having  been  made  to  botl%  unless  restricted  to  one 
al(5ne.     Ibid. 

24.  There  is  nothing"  in  the  Kevised  C(.»de,  ch.  119,  sec.  29, 
providing  for  a  child  born  after  the  will  of  his  father  was  made, 
which  makes  an  exception  to  the  rule  of  law,  that  an  assent  by 
an  executor,  to  a  tenant  for  life  of  a  chattel,  is  an  assent  to  tJii^ 
ulterior  legatee.      Windley  v.  GayJorrl,  7  Jones,  55. 

25.  The  assent  of  an  executor  to  the  tenant  for  life  of  a  chat- 
tel generally  leaves  notliing  that  can  vest  in  the  administrator 
df  bonis  non  of  the  testator.     Ibid. 

26.  A  be(]uest  cannot,  in  law,  have  the  effect  of  confii-roing  a 
parol  gift  of  a  slave,  so  as  to  vest  the  title  in  the  donee,  inde- 
pendently of  the  assent  of  the  executor,  Wooten  v.  Jarman.,  7 
Jones  238. 

See  (Executors  and  Administrators — -Of  their  liability  to  lega- 
tees and  next  of  kin,  4-5.)     (Trover — When  it  will  lie,  4.) 

IV.       WHEN  A  LEGACY  WILL  BE  PRESUMED  TO  HAVE  BEEN  PAID  OR  SATISFIED. 

1.  After  the  death  of  all  the  executors  of  an  estate,  and  at  the 
end  of  forty  years,  a  presumption  of  satisfaction  or  abandon- 
ment of  a  legacy  becomes  cogent,  unless  it  be  repelled  by  the 
time  of  the  payment  of  the  legacy,  the  age  of  the  legatee,  the 
practice  of  some  particular  imposition,  or  other  sufKcient  cir- 
cumstances.    3Iorrison  v.  JlIcEJrath,  4  Dev.  and  Bat.,  474. 

2  The  lapse  of  time  will  not  help  an  executor,  when  he  ad^ 
mits  that  he  paid  a  legacy  to  the  wrong  person,  as  to  an  insol- 
vent father  wlien  the  children  were  entitled  to  it,  and  will  not 
raise  a  presumption  of  payment  to  the  children,  or  an  abandon- 
ment or  acquiescence  by  them,      Wallis  v.  Coivell,  3  Ired.,  323. 

3.  Where  an  administrator  holds  a  distributive  share,  without 
closing  up  the  estate  by  a  settlement  and  payment  of  the  bal- 
ance struck,  the  remedy  of  the  next  of  kin  can  only  be  barred 
by  the  common  law  presumption,  arising  from  the  lapse  of 
twenty  years.  But  where  he  tiles  a  settlement,  setting  out  the 
admitted  balance,  and  the  matter  is  closed  upon  that  footing  by 
a  receipt  in  full  of  such  balance,  if  the  next  of  kin  afterwards 
seek  to  impeach  the  settlement,  he  must  do  so  within  ten  years, 
or  he  will  be  barred  by  the  act  of  presumptions.  Rev,  Code,  ch. 
ti5,  sec.  19.      Wilkermn  v.  Dunn,  7  Jones,  125. 

4.  The  common  law  presumption  as  to  a  legacy  or  distribu- 
tive share  does  not  begin  to  run  against  one  who  is  an  infant, 
until  he  comes  of  age.     Ibid. 

V.       LEGACY  "after  DEBTS  PAID,"  WHAT  FUKD  LIABLE  FOR  THEM. 

1.  Bequest,  "  after  my  debts  are  paid,  it  is  my  will  that  my 
stock  of  hogs  and  cattle,  &c.,  shall  go  to  M.  W.,"  the  debts  are 


LEGACY— V-VI-VIL— LEX  LOCI.  869 

to  be  paid  out  of  the  undisposed  surplus,  if  there  be  any,  as  that 
is  the  primary  fund  for  the  payment  of  debts.  Battle  v.  Yates,  2 
Hay.,  304,  (492.) 

VI.   FOR  THE  SEPARATE  USE  OF  A  FEME  COVERT. 

1.  A  bequest  of  a  slave  to  a  feme  covert  "for  her  proper  use  " 
does  not  vest  in  her  a  separate  and  exclusive  right;  but  the  leg- 
acy, if  assented  to  by  the  executor,  goes  to  the  husband;  for  the 
court  will  not  force  a  construction,  to  give  a  legacy  to  the  sepa- 
rate use  of  the  wife.     GilHa,^.  v.  Welch,  4  Dev.,  286. 

2.  Where  a  testator  bequeathed  thus:  "to  the  only  proper  use 
of  my  daughter  Margaret :"  and  it  did  not  appear  in  the  will,  nor 
by  the  proof,  that  she  was  a  foiie  covert,  though  she  was  so  in 
fact,  it  was  hehl  that  the  property  was  not  given  to  her  sole  and 
separate  u.se,  so  as  to  deprive  her  husband  of  his  marital  rights. 
Baso7i  V.  Hdt,  2  Jones,  323. 

Vn.       LAPSED,  VOm  AND  ADEEMED  LEGACIES. 

•  1.  When  a  legacy  is  given  to  four  children  by  name,  and  one 
of  them  dies  in  the  lifetime  of  the  testator,  his  legacy  is  lapsed, 
and  must  be  distributed  as  undisposed  of  property,  among  the 
)iext  of  kin  of  the  testator,  provided  there  is  no  residuary  clause 
in  the  will.     Stcde  v.  Shannonhonse,  7  L'ed.,  9. 

2.  A  testator  bequeathed  a  negro  woman  to  his  daughter,  and 
afterwards  sold  her,  and  kept  tlie  amount  received  from  the  sale, 
to  be  given  to  the  daughter  in  lieu  of  the  negro  sold,  but  made 
no  alteration  in  his  will,  and  it  was  held  that  the  legacy  was 
adeemed,  and  that  the  daugliter  had  no  right  to  the  price  of  the 
negro.     Snowdni  v.  Banlis,  9  Ired.,  373. 

See  (Legacy — Construction — What  passes  and  who  takes,  71.) 


I.EX  LOCI. 

L  If,  before  our  act  of  1823,  a  deed  had  been  executed  in  an- 
other state,  limiting  slaves  to  one  for  life  remainder  over  to  an- 
other, the  limitations  of  the  deed  would  have  been  supported, 
had  it  been  shown  that  they  were  good  according  to  the  lawB  of 
that  state.     Smthw.  Tucker,  2  Dev.,  541. 

2.  The  law  of  the  country  where  the  contract  was  made  is  the 
rule  by  which  its  validity,  its  meaning,  and  its  consequences  are 
to  be  determined.  But  where  a  law  of  Virginia  gives  bona  fide 
purchasers  of  slaves  from  a  bailee,  who  has  had  possession  more 


870  LEX  LOCI. 

than  five  years,  a  good  title  against  the  bailor,  unless  the  bail- 
ment be  registered,  if  a  purchase,  pending  a  suit  by  the  bailor 
against  the  bailee,  would  not  be  valid  in  A^irginia,  so  neither  would 
it  be  in  this  state,  although  the  suit  v/as  pending  in  Virginia,  and 
therefore  was  not  notice  to  the  vendee  here.  Watson  v.  Orr;  3 
Dev.,  16L 

3.  In  construing  the  law  of  anotli'u-  state  the  decisions  of  that 
state,  if  known,  are  to  be  followed.     Ibid. 

4.  The  interpretation  of  a  will  made  in  another  state  must  be 
determined  according  to  the  laws  of  that  state.  Kniqlit  v.  Wall. 
2  Dev.  and  Bat,  125. 

5.  The  courts  of  this  stated©  not  know  the  lawof  other  states, 
and  a  controversy  respecting  that  law  is  ordinarily  one  of  fact, 
which  must  be  decided  on  evidence  by  the  jury,  under  the 
instruction  of  the  court.     Ihid. 

6.  The  only  exception  to  this  rule  is  when  nul  tiel  record  is 
pleaded  to  the  judgment  of  a  court  of  record  in  another  state, 
in  which  case  the  court  here  must  pass,  not  only  upon  the 
existence  of  the  supposed  record,  but  upon  its  legal  effect.    Ibid. 

7.  The  laws  of  this  state,  at  the  time  of  the  cession  of  Ten- 
nessee, must  be  taken  to  be  the  laws  of  that  state,  until  it  be 
shown  that  they  have  been  altered  or  repealed.  State  v.  Fatter- 
son,  2  Ired.,  346. 

8.  A  gift  made  in  South  Carolina,  wdiich  is  good  by  the  law  of 
that  state,  is  good  in  this  state.     Adams  v.  Hayes,  2  Ired.,  361. 

9.  A  deed,  executed  in  South  Carolina  for  a  slave  then  being 
in  this  state,  with  certain  limitations  over,  which  by  the  law  of 
that  state  are  invalid,  but  which  by  our  law  are  good,  must  be 
construed  according  to  the  law  of  that  state,  and,  therefore,  the 
limitations  over  are  void.     Morroio  v.  Alexander,  2  Ired.,  388. 

10.  A  contract  for  money  payable  generally,  naming  no  place 
of  payment,  is  to  be  taken  to  be  payable  at  the  place  of  contract- 
ing the  debt,  and  not  where  the  domicil  of  the  creditor  may  be. 
Arrington  v.  Gee,  5  Ired.,  590. 

11.  Where  a  contract  is  made  in  another  state,  it  is  to  be  gov- 
erned by  the  laws  of  that  state,  and  not  by  those  of  North  Car- 
olina.    Anderson  v.  Bocdc,  10  Ired.,  295. 

12.  Where  A  purchased  a  slave  of  B,  in  the  state  of  Virginia, 
and  took  there  a  bill  of  sale,  which,  thongh  not  valid  under  our 
statute,  was  good  and  sufiicient  by  the  laws  of  that  state;  and 
the  slave  was,  at  the  time  of  the  said  sale,  in  the  possession  of  C, 
as  bailee  of  B,  in  this  state,  and  he  afterwards  sold  the  same.  It 
was  held  that,  in  a  suit  by  one  claiming  under  A  against  the 
vendee  of  C,  the  lex  loci  contradus  determined  the  sufficiency  of 
the  conveyance  from  B  to  A,  and  that  it,  therefore,  passed  a  good 
title.  It  would  have  been  otherwise,  had  the  defendant  been 
claiming  as  a  creditor,  or  under  a  creditor  of  B;  in  which  case 
the  lex  rei  sitoe  would  govern.     Drewry  v.  Pliillips,  Busb.,  81. 

13.  If,  by  the  laws  of  a  foreign  country,  a  contract  is  void 


LEX  LOCI— LIBEL.  871 

unless  it  be  written  on  stamped  paper,  it  is  void  every  ivlicre.  This 
principle  is  especially  applicaljle  to  the  several  states  of  this  con- 
federacy, which,  though  foreign  to  each  other  in  some  respects, 
are  miited  for  all  great  national  purposes  under  one  government. 
Therefore,  a  bond  executed  and  payable  in  the  state  of  Maryland, 
which  is  void  under  the  laws  of  that  state,  because  the  same 
was  not  written  on  stamped  paper,  is  void  here  also,  and  cannot 
be  recovered  in  the  courts  of  this  state.  Satterthivaife  v.  Doughty, 
Busb,,  314. 

14.  The  lex  fori,  and  not  the  lex  loci  contractus,  applies  to  the 
presumption  of  the  payment  of  a  bond  executed  in  Virginia, 
but  upon  which  suit  is  brought  in  this  State.  Halves  v.  Crcdgie, 
4  Jones,  394. 

15.  A  will  made  in  another  state,  which  is  there  subject  to  be 
construed  according  to  the  rules  of  the  common  law,  will  have 
the  same  construction  as  if  it  had  been  made  in  this  state,  un- 
less it  appear  by  judicial  decisions,  or  by  the  opinions  of  men 
learned  in  the  laws  of  that  state,  that  a  different  construction 
would  there  prevail.      Worrells.  Vinson,  5  Jones,  91. 

16.  A  limitation  over  of  personal  property,  situated  in  this 
state,  after  an  indefinite  failure  of  issue,  by  a  will  made  in  other 
state  by  one  domiciled  in  that  state,  is  too  remote;  as  the  com- 
mon law,  in  the  absence  of  proof  to  the  contrary,  will  be  pre- 
.sumed  to  be  in  force  in  that  state.  Black  v.  McAiday,  5  Jones, 
375. 

17.  AVhere  a  slave  was  sold  with  a  written  warranty  ol  *itle 
in  Alabama,  and  the  purchaser  held  him  there  adversely  for 
more  than  six  years,  and  it  was  shown  that  such  a  possession 
gave  a  title  by  the  laws  of  that  state,  it  was  held,  in  an  action  in 
this  state  for  fhe  breach  of  the  warranty,  that  the  title  was  made 
good  by  the  laws  of  Alabama,  and  that,  therefore,  the  plaintiff 
could  not  recover,  a,lthough  he  proved  that  the  slave  had  run 
away  in  South  Carolina,  and  a  court  of  that  state  had  decided 
that  the  title  thus  acquired  in  Alabama  was  invalid,  against  a 
person  wlio  had  previously  had  title  in  the  State  of  South  Car- 
olina.    Alexander  v.  Torrence,  6  Jones,  260. 

18.  Where  a  contract  is  made  in  one  country,  but  to  be  per- 
formed in  another,  the  rate  of  interest  will  be  according  to  the 
law  of  the  latter.     Roherts  v.  McNeely,  7  Jones,  506. 

.     See  (Interest,  4-16-17-18-20.) 


LIBEL. 

See    (Indictment — Form   and  matters  relating  tlireto,    127  ) 
(Indictment — Variance  between  the  allegation  and  proof,  1.) 


872  LIBEL— LICENSE. 

(Action  on  the  case— Slander,  5-9-42-63.)     (Evidence — In  crira»- 
inal  proceedings  and  indictments,  67.) 


LICENSE. 

1.  It  is  not  reasonable^  and  therefore  not  legal,  to  presume  a 
more  extensive  license  than  is  essential  to  the  enjoyment  of  what 
is  expressly  granted.  Therefore,  a  license  to  enter  a  man's  land, 
for  the  purpose  of  taking  off  corn,  must  be  construed  a  license 
to  enter  by  the  usual  mode  of  access  provided  for  such  purpose, 
as  through  the  gate  or  other  appropriate  entrance.  Gaxdner  v. 
Rowland,  2  Ired.,  247.  • 

2.  He  who  abuses  a  fegaHicense  is  a  trespasser  a6  w^Y^'o.  There- 
fore, where  a  man's  hogs  get  into  another's  field,  and  the  owner 
of  the  hogs  in  driving  them  out  lets  down  the  plaintiff's  fence, 
instead  of  di'iving  them  through  a  gap  or  gate,  he  is  guilty  of  a 
trespass.     Ihid. 

3.  Where  A  grants  a  license  to  B,  to  flow  the  water  from  B's 
land  through  A's  ditch,  B  has  no  right  to  increase  the  quantity 
of  water  so  flowed,  either  by  adding  to  the  number  of  his  ditches, 
or  clearing  new  land,  or  enlarging  his  ditches,  so  that  the  flow  ot 
water  will  be  greater  than  it  was  wdien  the  license  was  granted ; 
and  if  B  do  so,  A  may  recover  damages  for  any  injury  sustained 
thereby.     Carter  v.  Page,  8  Ired.,  190. 

4.  A  license  to  turn  one  stream  u]x>n  A.'s  land  is  not  an  au- 
thority to  stop  that,  at  the  party's  pleasure,  and  turn  another  in 
its  stead.     Ibid. 

5.  A  license  to  enter  upon  land  and  take  fish  out  of  the  own- 
er's pond  cannot  be  implied  by  proving  a^usage,  or  custom,  in  the 
country  at  large,  for  every  person  to  enter  upon  his  neighbor's 
land  and  take  fish.      Winders.   Blake,  4  Jones,  332. 

6.  An  indefinite  number  of  persons  are  not  capable  of  taking 
by  grant,  nor  are  they  capable  of  accepting  a  license,  except  in 
the  case  of  innkeepers,  shopkeepers,  and  the  like,  who  undertake 
to  serve  the  public.     Ihid. 

See  (Mills — Action  at  common  law  for  damages  caused  by  a 
mill,  2.)  (Mills — Proceedings  under  the  act  of  1809,  13.)  (Tres- 
pass— Of  trespass  quare  dausum  fvegity.  9.) 


LIMITATIONS— STATUTE  OF— I.  873 


LLAflTATIONS-STATUTE  OF. 


I.  When  the  statute  begins  to  run. 
II.  When  the  statute  will ,  or  will  not, 

bar  in  personal  actions. 
III.    Limitation    of   actions   on    oflkial 
bonds. 


IV.  *EfFect  of  the  statute  upon  the  title 
to  slaves 
V.  Limitation  as  to  suit  against  execu- 
tors,  administrators,  heirs  and 
devisees. 
YI.  Limitation  as  to  real  estate. 


♦Slavery  is  now  abolished  in  North  Carolina.     See  the  note  to  the  title  Slaves. 

I.       WHEN  THE  STATUTE  BEGIXS  TO  RUN. 

I 

1.  The  statute  will  begin  to  run,  where  A.  detains  the  chattel 
of  B.,  only  from  the  time  when  B.  knows  where  it  is,  and  that  it 
is  claimed  adversely.  Berri/  v.  PidUam,  1  Ilaj.,  16,  (21.)  S.  P., 
Elicicl-  V.  Bnsh,  Ibid,  28,  (37.) 

2.  The  statute  runs  from  the  date  of  the  last  item  in  an  ac- 
count, when  the  account  has  been  running*  on  from  its  first  com- 
mencement, but  when  it  is  once  deserted  or  ended  between  the 
parties,  theri  from  that  time.  McNaugJdon.  v.  Norris,  1  Hay., 
216,  (246.) 

3.  When  the  statute  begins  to  run,  none  of  the  impediments 
mentioned  in  the  act  will  stop  its  course.  Andreics  v.  3IvJ/ord, 
1  Hay.,  311,  (358.)  S.  P.,  Anonymous.  Ibid,  416,  (480.)  Cob- 
ham  V.  Need,  2  Hay.,  5,  (150.)  Fearcey.  House,^.  0.  TermPiep., 
305,  (722.) 

4.  In  the  case  of  slaves,  the  statute  begins  to  run  from  the 
time  they  got  into  the  defendant's  possession,  unless  he  were  en- 
trusted with  them  by  the  plaintiff  foran  indefinite  time,  (for  then 
the  statute  will  not  begin  to  run  till  a  demand,)  or  unless  the 
defendant  removed  himself,  so  that  the  plaintiff  could  not  find 
him  to  bring  suit,  or  had  the  slaves  without  the  knowledge  of 
the  plaintiff.— ^///y/o/-ev.  3IUh,  1  Hay.,  359,  (412.) 

5.  The  statute  will  run,  though  the  defendant  may  be  out  of 
the  country.     Anonymous,  1  Hay.,  459,  (528.) 

6.  Where  one  drew  the  pay  of  a  soldier,  the  hitter's  right  of 
action  accrued  immediately,  and  the  statute  then  began  to  run. 
Siveat  Y.Arrimjton,  2  Hay.,  129,  (293.) 

7.  In  case  of  fraud,  the  statute  will  not  run  but  from  the  time 
of  its  discovery.  Ibid.  (Overruled  hj  Hamilton  v.  Shepherd,  3 
Murph.,  115.) 

8.  If  the  purchaser  of  a  chose  in  action  sue  in  his  own  name 
and  be  non-suited,  and  afterwards  sue  in  the  name  of  the  ven- 
dor, the  former  suit  will  not  suspend  the  operation  of  the  statute 
as  to  the  last  suit,  because  there  is  no  privity  in  law  between  the 
vendor  and  vendee  of  a  chose  in  action.  Hahey  v.  Buckley,  2  Hay., 
234,  (414.) 


874  LIMITATIONS— STATUTE  OF— I. 

9.  If  a  trespass  be  begun  by  entering  on  lands  three  years 
before  the  action  of  trespass,  and  be  continued  until  the  action,  the 
plaintiff  is  barred  by  the  statute,  because  the  action  is  founded 
on  the  first  tortious  entry.     Pitrnon  v.  Casey,  2  Hay.,  293,  (478.) 

10.  The  statute  will  only  run  from  the  last  article  in  an  account 
current.     Kinihal  v.  Person,  2  Hay.,  394,  (593.) 

11.  An  order  of  the  court  of  equity,  directing  a  note  to  be  de- 
posited with  the  clerk  and  master,  by  which  the  plaintiff  was 
delayed  in  bringing  his  suit,  will  not  prevent  the  commencement 
or  stay  the  operation  of  the  statute.  Vance  v.  Grainger,  Conf 
Ftep.,  71,  (203.) 

12.  The  statute  begins  to  run  from  the  time  the  plaintiff  has 
cause  of  action  agaiitst  the  defendant.  Coomer  v.  Little,  Conf 
Kep.,  92,  (223.) 

13.  The  saving  in  the  statute,  as  to  persons  "  beyond  seas," 
<loes  not  extend  to  persons  resident  in  other  states  of  the  Union. 
WhiUock  V.  Walton,  2  Murph.,  23.  S.  P.  Farle  v.  McDoivell  1 
Dev.,  16. 

14.  The  statute  of  31  Eliz.,  limiting  the  time  for  bringing 
qui  tarn  actions,  is  in  force  in  this  state.  Bridges  v.  Smith,  2 
^lurph.,  53.  (Mow  repealed,  and  suits  for  penalties  provided  for, 
in  Eev.  Code,  eh.  65,  sec.  3.) 

15.  In  an  action  on  the  case  for  fraud  in  the  sale  of  a  land 
Avarrant,  the  action  accrues,  and  the  statute  begins  to  run,  from 
the  time  the  fraud  was  committed,  and  not  when  it  was  discov- 
(.-red.     Hamilton  v.  Shejyperd,  3  ]\lurph.,  115. 

16.  Where  A  owed  B,  and  made  him  a  payment,  taking  his 
acknowledgment  with  a  promise  to  refund  in  case  the  payment 
exceeded  the  amount  due,  and  upon  a  reference  the  arbitrator 
found  that  B  was  overpaid,  it  was  held,  in  an  action  upon  the 
acknowledgment  and  promise,  that  the  statute  did  not  begin  to 
run  until  the  award  was  made.     Falls  v.  McKnicjhi,  3  Dev.,  421. 

17.  A  surety,  who  pays  money  for  his  principal,  has  a  com- 
plete right  of  action  against  his  co-surety  Tor  his  rateable  part, 
from  the  time  of  such  payment;  and  the  statute,  therefore,  begins 
to  run  from  that  time.     Sherrod  v.  Woodard,  4  Dev.,  360. 

18.  AVhere  the  ownef  of  slaves  made  a  parol  gift  of  them  to 
his  son-in-law,  who  bequeathed  them  to  his  children  and  died, 
leaving  the  donor  executor  of  his  will  and  guardian  of  his  chil- 
dren, it  was  held  that  the  taking  possession  of  the  slaves  and 
hiring  them  out,  first  as  executor  and  then  as  guardian,  was  not 
a  possession  adverse  to  the  title  of  tlie  donor,  and  that  the  statute 
of  limitations  did  not  begin  to  run  against  him,  until  he  had  per- 
mitted a  division  of  the  slaves  between  his  grandchildren,  and 
delivered  them  over.     Alston  v.  Hamlin,  2  Dev.  and  Bat.,  115. 

19.  Where  an  original  writ  is  returned  "not  found,"  and  a 
term  of  the  court  is  suffered  to  elapse  without  suing  an  alias,  the 
suit  is  discontinued ;  and  it,  at  a  subsequent  term,  an  alias  be 


LIMITATIONS— STATUTE  OF— I.  875 

sued  out,  its  date  is  the  commencement  of  the  action,  and  tlie 
statute  begins  to  run  from  that  time.  Fulhrujld  v.  Tritt,  2  Dev. 
and  Bat.,  491. 

20.  If  an  action  be  wrongfully  brought  in  the  name  of  one 
•  without  his  knowledge  or  consent,  and  he  have  to  pay  the  costs 

upon  its  dismission,  his  right  of  action  for  the  iort,  against  the 
person  who  wrongfully  sued  in  his  name,  accrues,  not  from  the 
commencement  of  the  wrongful  action,  but  only  from  the  time 
when  he  is  compelled  to  pay  the  money  on  account  of  it;  and. 
consequently  the  statute  of  limitations  will  begin  to  run  only 
from  that  time.     3IiIIcr'  v.  EsJcridge,  1  Ire.d-,  147. 

21.  In  the  case  of  a  person  dying  intestate  in  another  state, 
the  statute  does  not  begin  to  run  here,  until  administration  is 
granted  in  this  state.     Leev.  Gaiise,  2  Ired.,  440. 

22.  Where  A.  undertook  to  go  to  Georgia,  sell  a  negro  of  the 
plaintiff  and  collect  his  hire,  and  with  the  proceeds  pay  off,  vpo// 
Ids  return  to  this  state,  a  certain  judgment,  it  loas  held  thata  riglit 
of  action  accrued  to  the  plaintiff,  as  soon  as  A  returned  to  this 
state,'  and,  instead  of  applying  such  proceeds  to  the  satisfaction 
of  the  judgment,  appropriated  them  to  his  own  use;  and,  of 
course,  the  statute  began  to  run  from  that  time.  Baines  v.  Wil- 
lianis,  3  Ired.,  481. 

23.  No  excuse  (beyond  the  exceptions  in  the  statute  itself,) 
such  as  the  deception  of  the  defendant,  &c.,  will,  in  a  court  of 
law,  prevent  the  statute  from  running.     Ibid. 

24.  Where  a  deputy  sheriff  received  money  on  an  execution 
in  his  hands,  and  had  failed  to  endorse  it  on  the  execution  or 
give  credit  for  it,  but  afterwards  collected  the  whole  amount,  with- 
out deducting  the  sum  so  paid,  and  afterwards  promised  to  pay  the 
defendant  in  the  execution,  if  such  mistake  had  been  made,  if 
was  held  that  the  statute  only  began  to  run  from  the  time  of  the 
promise,  not  from  the  time  the  money  was  received,  or  from  the 
time  of  the  failure  to  pay  it  over.  TarJdnton  v.  Hassell,  5  Ired., 
359. 

25.  In  a  suit  by  a  principal  against  an  agent,  to  recover  back 
money  entrusted  to  him  to  be  applied  to  a  s|)e('ial  purpose,  and 
which  he  had  failed  to  so  apply,  the  statute  did  not  begin  to  run 
until  a  demand  was  made.     Buchanan  v.  Parker,  5  Ired.,  597. 

26.  If  the  act  of  1715  will  not  bar  by  the  lapse  of  three  years, 
where  the  defendant  is  an  agent,  neither  will  the  act  of  1826,  be- 
cause there  must  be  a  cause  of  action  subsisting  before  the  time, 
under  either  statute,  can  commence  running.  Ihid.  (See  Rev. 
Code,  ch.  65,  sees.  3  and  18.) 

27.  The  statute  does  not  begin  to  run  against  persons  claim- 
ing a  legacy  of  slaves  in  remainder,  after  a  life  estate  in  another, 
until  tlie  death  of  the  tenant  for  life.     Miles  v.  Allen,  6  Ired.,  88. 

28.  The  statute  will  not  begin  to  run  against  oae  claiming 
land  in  remainder  after  a  life  estate,  until  the  death  of  the  tenant 
for  life.     Davenj)ort  v.  Wynne,  6  Ired,,  128. 


876  LliMITATIONS— STATUTE  OF— I. 

29.  Where  money  has  been  received  by  an  agent,  a  demand;, 
or  a  misapplication  of  the  money,  is  necessary  before  an  action 
can  be  brought,  and  the  statute  of  limitations  only  begins  to  run 
from  the  time  of  such  demand,  or  from  the  misapplication. 
Waring  v.  Bichardsony  II  Ired.,  77. 

30.  Where  A.  was  indebted  to  B.,  and,  for  a  fair  consideration, 
C  agreed  in  writing  to  pay  tlie  debt  to  B,  and  afterwards  upon  a 
demand  from  B.  refused  to  do  so.  and  A  was  subsequently  com- 
pelled to  pay  the  debt,  it  was  lield  that,  as  between  A  and  C,  A 
was  to  be  considered  as  surety  and  C  as  principal,  and  that  the 
statute  of  limitations  began  to  run  against  A's  claims  on  C,  not 
from  the  date  of  the  agreement,  o-r  of  C's  refusal  to  pay  B,  but 
only  from  the  time  when  A  actually  paid  the  money.  Ponderv. 
Carter,  12  Ired.,  242. 

31.  On  the  compromise  of  a  suit,  the  defendant  agreed  to  pay 
the  lee  of  the  plaintiff's  attorney,  wiiich  he  neglected  to  do,  and 
the  plaintiif  was  compelled  to  pay  it  himself.  If  iras  lield  that  the 
statute  did  not  begin  to  rmi  against  the  plaintiff's  claim  until  he 
j)aid  the  money,  and  that  it  was  not  necessary  to  give  notice  of 
the  payment  to  the  other  party  to  entitle  the  plaintiff  to  bring 
his  suit.     Deaver  v.  Carter^  12  Ired.,  267. 

32.  An  executor's  right  to  the  personal  property  of  his  testator 
commences  at  the  death  of  the  testator,  and  from  that  time  the 
statute  of  limitations  begins  to  run  against  him.  Arnold  v. 
Arnold,  13  Ired.,  174. 

33.  Where  a  party  claims  a  title  in  himself  under  a  convey- 
ance from  a  rion  compos  mentis,  and  has  possession  under  such 
alleged  title,  he  does  not  hold  as  bailee,  but,  although  the  orig- 
inal owner  is  not  barred  by  such  adverse  possession,  on  account 
of  his  incapacity,  yet  when  nis  incapacity  is*^  removed,  or  he  dies 
leaving  an  executor,  the  statute  begins  to  run.     1  bid. 

34.  Where  A  in  a  settlement  with  B  was  allowed  a  credit  of 
a  certain  sum  due  from  B  to  C,  it  itms  lield  that,  in  assumpsit  for 
money  had  and  received  by  C  against  A,  the  cause  of  action 
was  not  complete  until  the  plaintiff  gave  notice  to  the  defendant 
that  he  accepted  him  as  his  debtor,  and  the  statute  did  not 
begin  to  run  until  such  notice  was  given.  Carroivay  v.  Cooi\ 
Busb.,  173. 

35.  A  put  into  the  hands  of  B  for  collection  a  claim  against  C 
and  D,  and  a  judgment  having  been  obtained  thereon,  and  a^.fa. 
levied  on  the  property  of  C,  A,  B  and  C  met  at  the  house  of  C 
on  the  day  appointed  for  the  sale,  when  C  paid  to  B  one-half  of 
the  debt,  which  was  immediately  paid  to  A,  and  it  was  agreed 
between  B  and  C,  in  the  presence  of  A,  that  B  should  pay  the 
residue  of  the  debt  to  A,  and  if  it  should  not  be  collected  out 
of  D,  C  would  repay  it  to  B,  and  shortly  after  C  paid  the  residue 
to  B.     In  an  action  by  A  against  B,  it  was  held  that  what  liad 


LIMITATIONS— STATUTE  OF— 1-IL  877 

taken  place  at  the  house  of  C  was  equivalent  to  a  demand  by  A 
for  a  payment  from  B,  and,  therefore,  the  statute  began  to  run 
from  that  time.     Daniel  v.  Whitfield,  Busb.,  294. 

36.  Where  a  person  had  been  appointed  executor,  but  did  not 
qualify  or  renounce,  it  was  held  that  he  could  not  set  up  an 
adverse  possession  of  a  slave  under  a  bill  of  sale  obtained  from 
the  testator  before  his  death,  until  some  one  qualified  as  exec- 
utor or  administrator,  and  that  the  statute  of  limitations  would 
not  begin  to  run  until  such  qualification  and  a  demand,  when  no 
adverse  possession  of  the  slave  had  commenced  in  the  testa- 
tor's life  time.     Johnson  v.  Arnold  2  Jones,  113. 

37.  Where  one  receives  money  as  agent  for  another,  no  cause 
of  action  accrues  until  a  demand  is  made,  and  consequently  the 
statute  begins  to  run  only  from  that  time.  Hyman  v.  Gray,  4 
Jones,  155, 

38.  On  a  breach  of  a  warranty  of  the  soundness  of  a  slave,  the 
statute  begins  to  run  from  the  time  when  the  contract  of  war- 
ranty was  made,  and  not  from  the  time  when  the  injury  befalls 
the  purchaser,  arising  from  the  unsoundness.  Baiicumr,  Streater. 
5  Jones,  70. 

39.  Where  a  female  slave  is  held  adversely  and  has  a  child 
born  during  the  time,  the  statute  will  not  begin  to  run  as  to  the 
child  but  from  the  time  of  its  birth.    Houstonv.  Bibb,  5  Jones,  83. 

40.  Where  the  plaintiff,  living  in  Virginia,  had  put  a  note 
into  the  hands  of  the  defendant,  who  collected  it,  and  it  was 
proved  that,  at  the  time  of  employing  another  person  to  demand 
it  of  him,  the  plaintiff  said  that  he  had  once  before  sent  the 
defendant's  receipt  over  and  got  nothing.  It  was  held  that  this  did 
not  amount  to  the  proof  of  a  demand  made  more  than  three 
years  before  the  bringing  of  the  suit,  so  as  to  put  the  statute  in 
'motion.     Brool's  v.   Walters,  8  Jones,  428. 

See  (Ejectment — Trespass  for  v>ie.s??e  profits,  1.)  (Husband  and 
Wife — Husband's  interest  in  his  wife's  estate,  12.)  (Surety  and 
Principal,  9.) 

\U       WHEN  THE  STATUTE   \S\hh,  OR    WILL    NOT,    BAR    IN    PERSONAL    ACTIONS. 

1.  An  acknowledgment  to  an  executor  will  prevent  the  bar  of 
the  statute,  as  well  as  wlien  made  to  the  testator.  Billeics  v. 
Botigan,  I  Hay.,  13,  (18.) 

2.  To  repel  the  statute,  there  must  be  an  acknowledgment  of 
the  debt,  not  simply  of  a  fact  which  may  show  that  the  debt  is 
unsatisfied.     Fenjmon  v.  Taylor,  1  Hay.,  20. 

3.  A  defendant  wrote  the  plaintiff:  "  I  would  rather  come  to 
a  settlement,  although  I  should  allow  the  account  as  insisted  on 
by  you,  than  wait  the  event  of  a  lawsuit;"  and  it  icas  held  that 
these  words  took  the  case  out  of  the  statute.  Ferguson  v.  Fitt, 
1  Hay.,  239,  (274.) 

4.  A  direction  by  will,  that  the  testator's  just  debts  should  be 


878  LIMITATIONS— STATUTE  OF— II. 

paid,  was  held  to  prevent  the  operation  of  the  statute  of  limita- 
tions. Anonymous,  1  Hay.,  243,  (279.)  (Overruled;  see  Walker 
V.  Campbell,  1  Hawks,  304.) 

5.  The  time  between  the  6th  of  March,  1773,  and  the 
1st  of  June,  1784,  is  not  computed  in  this  state,  in  questions  on 
the  statute  of  limitations.     Sladev.  Smith,  1  Hay.,  248,  (2(i6.) 

fi.  The  statute  cannot  be  pleaded  by  any  other  person  than  the 
defendant.     Anonymous,  1  Hay.,  459,  (528.) 

7.  The  expressions  as  to  a  note :  "  It  was  at  the  desire  of  my 
mother  I  gave  it;  I  will  not  pay  it;  Rosser  ought  to  pay  it;  I 
Avill  speak  to  him  about  it:"  held  to  take  the  case  out  of  the  ope- 
ration ot  the  statute.     Cobliam  v.  Blosely,  2  Hay.,  6,  (151.) 

8.  The  words:  ''  I  have  credited  himni  my  account  with  the 
value  of  the  certificates;  if  he  will  meet  me  at  Newbern  I  wall 
settle  with  him:"  held  to  take  the  case  out  of  the  statute. 
Toomer  v.  Long,  2  Hay,  18,  (169.) 

9.  If  a  suit  be  brought  before  the  three  years  have  expired 
and  there  be  a  non-suit,  the  plaintiff  may  sue  again  within, 
twelve  months,  and  then  only  the  time  elapsed  before  the  first 
action  shall  be  counted.     Anonymmis,  2  Hay.,  63,  (231.) 

10.  If  the  new  action  be  not  commenced  within  twelve  months 
after  the  non-suit,  then  the  time  elapsed  during  the  pendency  of 
the  former  suit  shall  be  counted.  Ibid,  S.  P.,  Pearce  v.  House, 
Ibid,  386,  (588. )_ 

11.  If  the  plaintiff"  produce  an  account,  in  wliich  he  has  given 
the  defendant  credit  for  an  article  witJiin  three  years,  and  the 
defendant  claim  advantage  of  the  credit,  and  examine  testimony 
to  show  that  it  ought  to  have  been  more,  it  will  be  considered 
equivalent  to  his  keeping  an  account  against  the  plaintiff,  and 
prevent  the  statute  from  barring  the  plaintiff's  account.  Neic- 
some  V.  Person,  2  Hay.,  242,  (427.) 

12.  A  reference  to  arbitration  will  take  a  case  out  of  the  stat- 
ute.    ColklTig  V.  T.ackston,  Conf  Eep.,  93,  (225.) 

13.  An  action  of  debt  on  a  promissory  note  not  under  seal  is 
not  barred  by  the  statute.  Johnston  v.  Green,  1  Car.  L.  E.,  516, 
(129.)     (Altered,  see  liev.  Code,  ch.  65,  sec.  3.) 

14.  When  the  wife  was  an  infant  at  the  tune  the  act  of  1806, 
relative  to  parol  gifts  of  slaves,  began  to  run,  and  became  covert 
during  her  infancy,  the  act  cannot  be  set  up  against  a  suit 
brought  bv  her  husband  and  herself  Allen  v.  Gentry,  2  Car.  L. 
R.,  609,  (411.) 

15.  All  action  of  assumpsit  by  a  husband  and  wife,  for  money 
earned  by  the  wife  before  marriage,  will  be  barred  by  the  statute 
after  three  years,  notwithstanding  the  coverture,  because,  the 
cause  of  action  having  arisen  before  marriage,  the  statute  cannot 
l)e  stopped  by  the  coverture.     KUlian  v.   Watt,  3  Murph.,  167. 

16.  The  statute  limiting  penal  actions  contains  no  saving  of 
any  kind,  and,  therefore,  a  second  action  cannot  be  brought  with- 


LIMITxVTIONS— STATUTE  OF— TI.  879 

in  twelve  months  after  a  non-suit  in  the  first,  in  order  to  save  it 
from  the  operation  of  the  statute.  Clark  v.  Rutherford  3  Murph., 
237.     (See  Rev.  Code,  ch.  65,  sees.  3  and  8.) 

17.  The  act  of  1814  did  not  allow  three  years  after  its  passage 
for  bringing  actions  of  debt  upon  simple  contracts,  where  the 
cause  of  action  then  existed,  but  limits  the  bringing  of  the  action 
to  "  three  years  after  the  cause  of  action  accrued."  Sharpe  v. 
Jones,  3  Murph.,  30G.     (See  lie  v.  Code,  ch.  65,  sec.  3.) 

18.  "Whenever  the  statute  is  a  bar  to  the  recovery  of  o)ie  of 
the  plaintiffs  to  an  action  of  detinue,  it  operates  against  all,  be- 
cause the  disability  of  one  does  not  save  the  rights  of  others. 
The  statute  protects  the  rights  of  those  who  are  incompetent  to 
protect  themselves;  but  when  some  of  the  parties  are  competent, 
they  oug-ht  to  take  care  of  the  interest  of  all,  by  bringing  suit 
within  time.  Riden  v  FrioJi,  3  Murph.,  577.  (One  joint  owner 
ot  personalty  may  now  be  barred  without  affecting  the  others. 
Rev.  Code,  ch.  65,  sec.  21.)   . 

19.  A  debt  barred  by  the  statute  of  limitations  is  not  revived 
by  a  direction  in  the  debtor's  will,  that  certain  property  be  sold. 
"  and  with  the  proceeds  thereof,  after  paying  my  debts,  they," 
&c.      Walker  v.  Cam'pbell,  1  Hawks,  304. 

20.  An  acknowledgment  by  one  partner,  made  after  the  dis- 
solution of  the  firm,  will  prevent  the  operation  of  the  statute  on 
a  claim  existing  against  the  partnership.  Mclntire  v.  Oliver,  2 
Hawks,  209.     (Altered;  see  Rev.  Code,  ch.  65,  sec.  22.) 

21.  It  is  a  good  replication  to  a  plea  of  the  statute,  that  the 
plaintiff  brought  his  action  within  a  year  after  a  non-suit,  and 
that  the  cause  of  action  is  the  same.  Shillington  v.  Allison,  2 
Hawks,  347.     (See  Rev.  Code,  ch.  65,  sec.  8.) 

22.  The  acknowledgment,  which  will  take  a  case  out  of  the 
statute,  must  be  one  of  a  present  subsisting  debt.  Hence,  Avhere 
a  defendant,  in  an  affidavit  for  a  continuance,  stated  "  that  the 
action  was  founded  on  his  guarranty,  and  by  the  absent  witness 
he  expected  to  prove  such  laches  on  the  part  of  the  plaintiff  as 
to  dischf  rge  him  from  his  engagement,"  it  was  held,  that  there 
Avas  no  acknowledgment  sufficient  to  take  the  case  out  of  the 
statute.     Bank  of  Neiohern  v.  iSnead,  3  Hawks,  500. 

23.  Cumulative  disabilities  will  be  allowed;  hence,  if  an  in- 
fant have  cause  to  sue  in  detinue  for  a  slave,  and  marry  before 
coming  to  full  age,  her  coverture  will  protect  her  from  the  ope- 
ration of  the  statute.     Davis  v.  Cooke,  '6  Hawks,  608. 

24.  When  a  parent  jnits  a  slave  into  the  possession  of  a  child, 
without  an  express  parol  gift,  this  possession  is  not  adverse,  and 
does  not  divest  the  title  of  the  parent  or  bar  his  action  'Justice 
V.  CqU's,  1  Dev..  469. 

25.  The  acts  of  1715  and  1814  do  not  bar  the  action  given 
against  justices  of  the  peace  by  the  act  of  1790.     Governor  v. 


880  LIMITATIONS— STATUTE  OF— IT 

McAffee,  2  Dev.,  15.     (See  Rev.   Code,  ch.  65,   sec.  3  and  eh.  78., 
sec.  7.) 

26.  The  proviso  in  the  6th  section  of  the  act  of  1715,  whereby 
the  operation  of  the  statute  is  suspended  upon  a  judgment  for 
the  plaintiff  and  its  reversal  for  error,  or  upon  an  arrest  of  judg- 
ment on  a  verdict  in  his  favor,  provided  he  biing  a  new  action 
within  a  year,  has  been  extended  by  construction  to  the  cases  of 
an  abatement  and  a  non-suit.  The  proviso  is  founded  on  the 
idea  of  merits  in  the  plamtifF,  though  inartilically  ascertained; 
and  its  extension,  by  construction,  to  an  abatement  and  nonsuit 
is  based  upon  the  tact  that  the  merits  are  indift'erent,  and  the 
plaintiff  has  been  diligently  endeavoring  to  assert  them.  Mor- 
rison  v.  Connelly,  2  Dev.,  233. 

27.  The  act  of  182(»,  for  quieting  the  title  of  persons  in  posses- 
sion of  slaves,  does  not  pass  the  title  to  a  donee,  who  has  been  in 
possession  three  years  under  a  gift  void  by  the  act  of  1806.  Pal- 
mer V.  Fo.ucif,  2  bev.,  240.  (See  Rev.  Code,  ch.  65,  sec.  20,  and 
ch.  37,  sec.  17.) 

28.  The  proviso  in  the  act  of  1820^  for  quieting  the  title  to  per=' 
sons  in  the  possession  of  slaves,  extends  not  oidy  to  gifts  of  slaves 
void  by  the  act  of  1806,  but  also  to  those  which  are  void  by  the 
act  of  1784.     Peterson  y.  JViUiamsov,  2  Dew.,  d2Q.  ^ 

29.  In  order  to  take  a  case  out  of  the  statute  of  limitations,  tlie 
new  promise  or  acknowledgment  must  be  an  express  promise  to 
pay  a  particular  sum,  absolutely  or  conditionally,  or  aii  admis- 
sion of  facts  from  which  the  court  can  infer  an  obligation  for  a 
certain  sum,  or  that  the  parties  are  willing  to  account  and  to 
pay  the  balance  when  ascertained.  Hence,  mere  vague  decla- 
rations, from  which  the  court  and  jury  can  only  surmise  that 
the  defendant  possibly  meant  to  admit  himself  a  debtor  for  some 
undeiijied  amount,  and  without  reference  to  any  tiling  that  can 
make  it  certain,  are  not  sufficient;  as  where  a  defendant  admit- 
ted that  there  ought  to  have  been  a  settlement  between  him  and 
the  plaintiff,  and  added  "  but  little  if  any  thing  was  due."  Pee- 
bles V.  3Iason,  2  Dev.  367. 

30.  Actions  on  justices'  judgments,  which  Avere  barred  by  the 
act  of  1820,  were  not  revived  by  the  act  of  1825,  which  extended 
the  time  of  limitation  to  seven  years.  Tuijlor  v.  Harriso7i,  2 
Dev.,  374.     (See  Rev.  Code,  ch.  65,  sec.  6.) 

31.  The  act  of  1786,  respecting  endorsed  bonds,  limits  only 
the  action  on  the  case  given  to  the  endorsee;  but  when  a  bond, 
after  beiug  endorsed,  became  again  the  property  of  the  obligee, 
there  is  no  statute  limiting  his  action  of  debt.  Pliifer  v.  Giles, 
2  Dev.,  41)8.     (See  Rev.  Code,  ch.  65,  sec.  3.) 

32.  In  debt  upon  simple  contract,  a  replication  of  a  ]iew 
promise  within  three  years  is  no  answer  to  a  plea  of  the  statute 
of  limitations.     Morrison  v.  Mortison,  3  Dev.,  402. 

33.  When  the  plaintiff,  to  rebut  the  plea  of  the  statute  of  limi- 


LIMITATIONS— STATUTE  OF— II.  881 

t&tions,  proved  that  the  defendant's  testator,  in  his  last  sickness,- 
sent  for  liira,  and  expressed  great  anxiety  to  adjust  an  unsettled 
account  between  them,  and  upon  being  disapjDointed,  made 
entries  of  credits  to  wliich  he  was  entitled,  but  it  was  not  proved 
that  he  admitted  a  balance  to  be  be  due  to  the  plaintiif.  It  tvas 
held  that  the  eviden(;e  was  not  sufficient  to  authorize  a  verdict 
for  the  plaintiff",  but  that  it  sliould  be  left  to  the  jury,  with  instruc- 
tions to  find  for  the  defendant,  uidess  the  testimony  proved  the 
testator  to  have  been  willing  that  the  accounts  should  be  settled 
after  his  death.     BaUenger  v.  Barnes,  3  Dev.  460. 

34.  Although  no  laches  are  imputed  to  the  State,  and  as  to  it 
the  rule  is  nnllum  tempiis  occurrit,  yet  this  is  not  the  case  as  to 
those  bodies  to  whom  the  execution  of  public  trusts  is  confided; 
and  where  the  county  court  brought  an  action  of  assumpsit 
against  a  treasurer  of  public  buildiiigs,  itioas  held  that  the  stat- 
ute might  bar.     Armstrong  v.  BaUon,  4  Dev.,  5G8. 

35.  The  possession  of  slaves  for  more  than  three  years,  by  the 
trustees  of  a  religious  society,  for  its  benefit  exclusively  and 
against  the  rights  of  all  others,  is  a  bar  to  an  action  of  detinue- 
for  the  slaves,  not^athstanding  the  society  considers  slavery  as 
sinful,  and  holds  the  slaves  for  the  purpose  of  giving  them  the 
advantages  of  frec?nen;  because  the  cause  of  action  arose  from 
the  conversion,  and  not  from  the  intent  with  which  it  was  made. 
White  V.  White,  1  Dev;  and  Bat.,  260. 

36.  The  mere  existence  of  disconnected  and  opposing  demands 
between  two  parties,  one  of  which  demands  is  of  recent  date, 
will  not  take  a  case  ont  of  the  statute.  There  mu.st  be  mutual 
running  accounts,  having  reference  to  each  othtir,  between  the 
])arties,  for  an  item  within  time  to  have  that  effect.  Green  v. 
Culddengh,  1  Dev.  and  Bat.,  320. 

37.  By  the  act  of  17  5,  one  year  is  the  limitation  to  an  action 
of  trespass  vi  et  armis  to  jDcrsonal  property.  /Sivvnk  v.  Fort,  2 
Dev.  and  Bat.,  133.  (The  limitation  to  such  an  action  is  now 
three  years.     See  Rev.  Code,  ch.  65,  sec.  3.) 

38.  A  count,  in  a  declaration  for  goods  sold  and  delivered  by 
the  plaintiff,  embraces  equally  the  original  promise,  implied  by 
the  law  from  the  delivery  of  the  articles,  and  a  siibsequent 
express  promise  to  pay  for  them ;  because  the  time  of  the  promise 
does  not  constitute  a  material  part  of  the  contract  declared  on. 
Jlence  such  subsequent  promise,  if  made  within  t)u-ee  years, 
may  be  proved  in  support  of  the  declaration,  and  to  repel  the 
p'ea  of  the  statute  of  limitations.  Finn  v.  Fitts,  2  Dev.  and 
Bat.,  236. 

39.  When  two  persons  having  opposing  claims  t©  certain 
slaves,  both  bail  then)  toa  third  person,  thepossession  of  the  bailee 
is  not  such  a  possession  of  either  claimant,  as  to  divest  the  better 
title  under  the  act  of  1 820,  and  give  it  to  the  other  party.  Ilandin 
V.  Alston,  2  Dev..  anl  Bat.,  26'J.     (See  Rev.  Code,  ch.  65,  sec.  20.) 

14* 


882  LIMITATIONS— STATUTE  OF— 11. 

40.  An  ackilowledgment  or  promise,  to  repel  the  statute  of 
limitations,  must  be  distinct  and  explicit,  and  plainly  refer  to 
the  debt  in  question ;  and  where  the  plaintiif 's  claims  consisted 
of  two  debts  only,  one  of  which  was  barred,  a  letter  from  the 
defendant  to  him  as  follows :  "  I  do  now  and  have  always  appre- 
ciated your  favors  and  kindness  to  me;  and  they  shall  not  go 
■unrewarded  by  me;  but  I  sliall  want  some  little  time  to  meet 
your  demand,"  is  too  vag'ue  to  entitle  the  plaintiff  to  recover,  as 
it  may  apply  only  to  the  debt  which  was  not  barred,  jSiualhuood 
V.  Smallwood,  2  Dev.  and  Bat,,  330. 

41.  A  promise  to  pay  a  debt  barred  by  the  statute  of  limita- 
tions revives  the  old  contract,  or  is  evidence  of  similar  continuing 
promises  irom  the  time  the  contract  was  made.  Hence  it  follows 
that  the  first  promise  should  be  declared  on ;  and  if  the  new 
promise  be  made  after  the  writ  is  sued  out,  the  plaintiff  may 
recover.     Falls   v.  SIterril,  2  Dev.  and  Bat.,  371. 

42.  If  a  new  promise,  taking  a  case  out  of  the  statute,  be  made 
by  or  to  an  executor  then  the  action  must  be  brought  on  it. 
Ibid. 

43.  When  the  new  promise  is  conditional,  upon  the  perform- 
ance of  the  condition  it  is  evidence  of  a  previous  absolute  prom- 
ise,    i  bid. 

4:4:.  Where  the  guardian  of  a  lunatic,  under  an  order  for  the 
sale  of  the  lunatic's  property,  became  the  purchaser  of  a  slave, 
and  upon  the  lunatic's  becoming  of  a  sound  mind,  settled  with 
him,  and  obtained  a  receipt  for  "all  demands,"  and  afterwards 
retained  possession  of  the  slave  for  more  than  three  years,  it  was 
held  that,  although  the  purchase  gave  the  guardian  no  title,  the 
settlement  and  receipt  were  evidence  of  a  demand  for  the  slave, 
and  that  the  subsequent  possession  was  adverse,  and  barred  the 
action  of  the  lunatic.     Boyce  v.   Wa7-ren,  2  Dev.  and  Bat.,  498. 

45.  The  possession  of  a  slave  by  a  donee,  under  the  act  of  1806, 
is  that  of  a  bailee,  and  no  length  of  such  possession  will  bar  the 
title  of  the  donor;  but  if  he  demand  possession,  and  the  donee 
refuse  to  deliver  up  the  slave,  claiming  him  as  his  own,  his  pos- 
session will  then  become  adverse  to  the  donor,  and  after  three 
years  will  bar  his  action.  Martin  \.  Harhin,  2  Dev.  and  Bat.,  504. 

4(i.  In  order  to  repel  the  statute  of  limitations,  there  must  be 
either  an  express  promise  to  pay,  or  an  explicit  acknowledg- 
ment of  a  subsisting  debt.  Mastin  v.  IVaugh,  2  Dev.  and  Bat., 
517. 

47.  In  order  to  repel  the  statute,  there  must  be  either  an 
express  promise  to  pay,  or  an  explicit  acknowledgment  of  a 
subsisting  debt  from  which  the  law  can  imply  a  promise  to  pay 
it.  But  if  the  debtor,  at  the  time  he  acknowledges  the  debt, 
refuses  to  pay  it,  or  offers  to  pay  a  smaller  sum,  saying  that  if 
liis  offer  is  not  accepted  he  will  plead  the  statute,  there  is  noth- 
ing from  which  the  law  can  imply  a  promise  to  pay  the  debt. 


IIMITATIOXS-^STATUTE  OF— 11.  883 

«i"ncl  it  will  not  be  taken  out  of  the  operation  of  the  statute.  Mc- 
Glensij  V.  Fleming^  4  Dev.  and  Bat.,  129. 

48.  Wherever  thy  statute  is  a  bar  to  the  recovery  of  one  of 
eeveral  parties,  plai.itiffs  in  an  action  of  detinue,  it  will  operate 
against  all,  though  the  others  were  under  the  flisability  of  in- 
fancy. Montgomery  y.  7r?/mi5,  4  Dev.  and  Bat ,  527.  (In  such 
case  the  bar  of  one  will  not  now  bar  those  under  disability.  See 
Kev.  Code,  ch.  65,  sec.  21.) 

49.  Probably  if  there  be  an  explicit  acknowledgment  of  a 
debt,  and  a  distinct  admission  that  it  has  not  been  paid  but  still 
exists,  and  nothing  more  be  vsaid  about  the  mode  or  time  of  pay- 
ment as  proposed  by  the  debtor,  or  of  his  objection  to  pay  upon 
the  ground  of  the  statute  of  hmitations,  or  some  other  defence, 
then  such  unqualified  admissions  might  go  the  jury  as  evidence 
of  a  new  pr^misa  But  if  the  language  of  the  party  be  so  vague 
and  indeterminate,  as  not  in  itself  to  amount  to  a  promise,  or  to 
eatisfy  the  mind,  either  from  its  own  t<^rm8,  or  something  referred 
to,  what  the  party  meant  to  engage,  there  is  nothing  to  repel  the 
statute.      Wolfe  v.  Fleming^  1  J  red.,  290. 

50.  To  repel  the  bar  created  by  the  statute,  the  words  ought 
not  to  leave  the  meaning  in  doubt,  but  should  clearly  indicate 
the  intention  to  assume  or  renew  the  obligation  for  the  debt. 
Hence,  where  it  was  proposed  to  the  defendant  that  if  he  would 
pay  the  principal,  the  interest  should  be  forgiven,  and  he  de- 
clined the  proposition,  and  in  turn,  requested  the  witness  to  buy 
the  debt,  (which  was  about  $(355  principal,  and  about  $180  in- 
terest,) for  $500,  and  expressed  the  opinion  that  the  creditor 
"would  accept  that  sum,  it  teas  held  that  these  words  did  not  take 
the  case  out  of  the  statute;  that  this  language  imported  more  an 
otler  of  compromise,  than  a  promise  to  pay  the  debt.     Ibid. 

51.  Proof  that  the  defendant  said  at  one  time,  "he  owed  the 
plaintiff  right  smart  of  money,"  and  at  another,  "he  owed  him 
the  biggest  debt  he  owed  to  any  person,"  will  not  take  a  case 
out  of  the  statute. — Rainey  v.  Link,  3  Ired.,  376. 

52.  A  plaintiff,  having  recovered  a  judgment  against  a  person, 
issued  a  svi.  fa.  against  his  bail,  to  which  the  bail  pleaded  that 
no  ca.  sa.  had  issued  against  his  principal,  and  the  issue  thereon 
was  found  in  his  favour.  The  plaintiff,  then,  after  the  expira- 
tion of  some  years  from  the  rendition  of  the  judgment  against 
the  principal,  issued  another  sci.  fa.  against  the  bail,  to  which 
the  latter  pleaded  the  statute  limiting  the  time  within  which  a 
sci.  fa.  should  issue  against  bail,  it  ivas  held  that  the  time,  du- 
ring which  the  former  proceedings  against  the  bail  were  pend- 
ing, should  not  be  deducted  from  the  computation  of  the  time  with- 
in which  the  sci.  fa.  was  to  be  sued  out.  Deviney  v.  IVells,  4 
Ired.,  30. 

53.  The  bailee  of  slaves,  where  there  is  nothing  to  change  the 
relation,  will  not  hold  them  adversely  to  the  bailor  nor  to  his 


884  LIMITATIONS— STATUTE  OF— II. 

executors,  but  if^upon  the  assent  of  the  executors,  there  be  a  set- 
tlement of  the  estate  among-  all  the  legatees,  and  the  bailee  of  the 
slaves  be  permitted  to  take  and  keep  them  as  his  own  upon  the 
supposition  that  they  belong  to  him,  his  possession  will  become 
adverse  from  the  time  of  the  settlement  and,  if  continued  for 
three  years,  will  bar  the  claim  of  the  executors.  Simpson  v.  Bos- 
loell  5  Ired.,  49. 

54.  An  act  or  acknowledgment  by  one  partner,  after  the  dis- 
solution of  the  partnership,  which  prevents  the  operation  of  the 
statute  as  to  that  partner,  will  also  prevent  its  operation  as  to 
the  other  partners.  Walton  v.  Robinson,  5  Ired.,  341.  (Altered. 
See  Kev.  Code,  ch.  G5,  sec.  22.) 

55.  Making  a  payment  on  a  promissory  note  repels  the  statute. 
It  is  assuming  the  balance  anew.     Ibid. 

56.  A  legal  presumption  of  the  satisfaction  of  a  simple  con- 
tract arises  only  on  the  expiration  often  years  fromthe  time  the 
cause  of  action  accrued ;  therefore,  when  the  action  was  upon  a 
receipt  of  the  deiendant's  testator,  who  was  a  constable,  for  notes 
belonging  to  the  plaintiff  to  collect,  and  it  did  not  appear  by  any 
actual  proof  that  any  demand  had  been  made  by  the  plaintiff  un- 
til fifteen  years  after  the  date  of  the  receipt,  but  this  demand 
was  made  within  three  years  berore  the  bringing  of  the  action, 
it  uris  held  that  the  judge  erred  in  instructing  the  jury,  that 
though  there  was  no  d<^mand  before  the  one  proved,  and  there- 
fore the  ordinary  statute  of  limitations  could  not  run,  yet  that 
after  the  lapse  of  ten  years  from  the  date  of  the  receipt  the  law 
presumed  the  claim  Settled,  unless  the  contrary  appeared.  But 
he  might  properly  have  left  to  the  jury  the  great  length  of  time 
which  had  elapsed,  as  a  circumstance  from  which  they  might 
have  inferred,  that  either  a  settlement  had  been  made,  or  that 
there  had  been  a  demand  for  a  settlement  so  long  ago  as  to  let 
in  the  operation  of  the  statute  of  limitations,  Spruill  v.  Daven- 
prrf,  5  Ired.,  663. 

57.  A  payn)ent,  made  by  one  of  the  makers  of  a  promissory 
note  within  three  years,  will  take  the  debt  out  of  the  statute  of 
limitations  as  to  all  Davis  v.  Coleman,  7  Ired.,  424.  (It  would 
not  now  have  such  an  effect.     See  Rev.  Code,  ch.  65,  _sec._  22.)  _ 

5<S.  Where  slaves  are  bequeathed,  the  statuteof  limitations,  in 
behalf  of  one  wlio  has  purchased  them  from  a  stronger  and  kept 
them  in  possession  the  requisite  time,  gives  a  title  against  the' 
executor,  and  a  subsequent  assent  by  him  to  the  legacy  will 
not  enable  the  legatees  to  sustain  an  action  for  the  slaves  at  law. 
B-vneft  V.  Williamson,  8  Ired.,  121.  (See  Rev.  Code,  ch.  65, 
sec.  20.) 

59.  The  saving  in  the  statute  as  to  slaves  is  meant  for  one  who 
has  an  original  cause  of  action  at  law.      Ibid. 

60.  To  take  a  case  out  of  the  statute,  the  promise  or  acknowl- 
edgment must  be  an  express  promise  to>  pay  a  particular  sum 


LIMITATIONS— STATUTE  OF— II.  885 

either  absolutely  or  conditionally;  or  such  an  admission  of  facts 
as  clearly  shows,  out  of  the  party's  own  mouth,  that  a  certain 
balance  is  due,  from  which  the  law  can  imply  an  obligation  and 
promise  to  pa}";  or  that  the  parties  are  yet  to  account-,  and  are 
willing  to  account  and  pay  the  balance  then  ascertained.  Sher- 
rod  V.  Bennett,  8  Ired.,  805). 

61.  In  an  action  for  harboring  a  slave,  to  which  the  statute  of 
limitations  Avas  pleaded,  the  plaintiff  could  not  prove  any  act  of 
hai boring  within  three  years  before  suit  brought,  but  proved 
that  the  defendant  had  liarbored  the  slave  for  several  years  be- 
fore that  period.  It  was  held  that  there  was  no  evidence  that  there 
was  any  harboring  within  three  years,  to  prevent  the  bar  of  the 
statute,     ^ariies  v.  Farmer,  9  Ired.,  202. 

62.  To  repel  the  statute,  a  promise  to  pay  must  be  proved, 
either  express  or  implied.  And  the  law  will  imply  a  promise, 
where  there  is  an  acknowledgment  of  a  subsisting  debt,  unless 
there  be  something  to  reluit  the  implication,  i^mith  v.  Leeper^ 
10  Ired.,  80. 

63.  If  oue  pay  a  debt  in  part,  the  law  implies  a  promise  to  pay 
the  balance,  in  the  absence  of  any  circumstance  to  negative  such 
a  promise.     I  bi  I. 

64.  Where  the  copy  of  an  account  was  shown  to  the  defend- 
ant, and  she  said,  "she  had  no  money,  but  wcmld  call  in  a  few 
days  and  settle  it,"  and  that  she  did  not  intend  to  cut  him  out 
of  it,"  it  icas  held  that  this  was  an  explicit  acknowledgment  of 
a  subsisting  debt,  from  which  a  'promise  to  pay  might  be  im- 
plied, if  indeed  there  was  not  evidence  of  an  express  promise. 
Ibid. 

65.  Where  only  one,  of  several  tenants  in  common  of  a  ne- 
gro, sues  in  tort,  the  statute  cannot,  if  he  were  under  disal)ility, 
operate  upon  him,  even  though  it  might  against  all,  if  his  co- 
tenants,  against  wliom  it  was  available,  had  joined  in  the  action. 
Qiiccre,  how  it  would  be,  if  the  objection  had  been  taken  by  a 
special  plea.  H'eart-  v.  Borge,  10  Ired.,  169.  (One  joint  owner 
may  now  be  barred  while  the  others  are  not.  See  Rev.  Code,  ch. 
65,  sec.  21  ) 

iaix  A  promise  of  a  party  that  he  will  settle  with  another  wall 
only  take  a  case  out  of  the  statute  of  limitations,  when  it  clearly 
appears  that  the  promise  referred  to  the  particular  claim.  Arey 
V.  Sieven.son,  11  Ired.,  8(5. 

67.  A  new  promise  will  not  prevent  the  bar  of  the  statute  to 
a  suit  on  a  jn.vtice's  judgment;  for  the  replication  of  a  new  pro- 
mise to  a  plea  of  the  statute  is  confined  to  actions  "on  promi- 
ses."    Taylor  v.  Spivei/,  11  Ired.,  427. 

68.  x\fter  a  debt  had  been  Ijarred  by  the  statute,  the  debtor 
said  to  the  creditor,  "  imless  J.  R.  has  paid  it  for  me,  it  is  a  just 
debt  and  I  will  pay  it;"  and  again  "it  is  a  just  debt  and  I  will 
payit,  .if  I  cannot  prove  tliat  it  lias  been  settled  by  J.  R.,"  it 


886  LIMITATIONS— STATUTE  OF— IL. 

ivas  held  that  the  debt  was  thereby  taken  out  of  the  statute,  and 
that  by  such  declarations  the  onus  of  proof  that  the  debt  had 
been  paid  rested  on  the  defendant.  Bichmond  v.  Fugua,  11 
Ired.,  445. 

69.  When  a  plaintiff;  in  order  to  bar  the  operation  of  the  stat- 
ute, gives  in  evidence  words  used  by  the  defendant,  the  language 
must  be  such  as,  without  straining,  imparts  a  willingness  and. 
intention  thereby  to  assume  the  debt,  or  amounts  to  an  unequiv- 
ocal acknowledgment  of  its  subsistence  and  obligation.  Taylor 
v.  Stedriian,  11  Ired.,  447. 

70.  In  a  conversation  bet  wean  the  plaintiff  and  the  defendant 
in  relation  to  the  matter  in  dispute,  the  former  said  to  the  latter, 
"  that  matter  about  Frank's  hire  in  1842  must  be  fisted,"  when 
the  latter  asked,  "  will  not  other  notes  or  judgments  do  instead 
of  mine?"  and  the  plaintiff"  remarked  "yes,  if  they  are  good,'*" 
when  nothing  further  passed  between  them,  it  ivas  held  that  the 
defendant's  expressions  did  not  revive  the  debt,  and  bar  the 
operation  of  the  slatute.     Ibid. 

71.  In  detinue  by  a  husband  and  wife  for  a  slave,  when  it  ap- 
peared that  the  slave  liad  been  given  to  A  for  life^  and  after  her 
death  to  the  feme  plaintiff",  who,  at  the  death  of  the  tenant  for 
life,  was  an  infant  and  married,^  and  had  never  since  been  dis- 
covert, it  was  held  that  the  action  was  not  barred  by  the  statute 
of  limitations.     McLean  v.  Jachsoii,  12  Ired.,  149. 

72.  In  an  action  of  assumpsit,  brought  for  a  certain  sum  of 
money  agreed  to  be  paid,  it  is  no  bar  to  the  plea  of  the  statute 
of  limitations,  that  the  defendant  within  three  years  promised 
to  pay  the  debt  in  good  notes  or  judgments,  which  promise  was 
accepted  by  the  plaintiff"     Taylor  v.  /Stedman,  13  Ired.,  97. 

73.  Where  a  sci.fa.  on  a  judgment  is  issued,  and  the  plaintiff" 
is  nonsuited,  and  issues  a  second  sci.  fa.  within  the  time  pre- 
scribed in  the  statute  of  limitations,  a  variance  between  the 
latter  and  the  former  is  not  material,  if  both  be  for  the  same 
cause  of  action  and  between  the  same  parties.  Trice  v.  Turren- 
tine,  13  Ired.,  212. 

74.  To  repel  the  statute,  a  promise  must  be  either  for  a  sum 
certain,  or  for  that  which  may  be,  and  afterwards  is,  reduced  to 
a  certainty.     3Ioore  v.  Hyman,  13  Ired.,  272. 

75.  A  brought  a  suit  against  B  for  a  certain  amount  of  herrings 
placed  with  him  for  sale,  and  the  parties  disagreed  about  six 
barrels  for  which  B  claimed  a  credit.  B  asked  A  "-why  he  sued'?" 
To  which  the  reply  was,  "for  a  settlement,"  to  which  B  said,  "we 
are  willing  to  settle  and  always  have  been  willing;"  and  the 
matter  was  then,  by  agreement,  referred  to  arbitrators  whenever 
decided;  and  the  statute  being  pleaded,  it  loas  held  that  the 
promise  implied  in  the  words  used  was  uncertain  as  to  the  sum, 
that  sum  never  having  been  ascertained  in  the  mode  agreed 


LBIITATIONS— STATFfE  OF— 11.  887 

on,  and  the  promise  was  too  vague  to  have  any   legal  effect 
Ihid. 

76.  To  take  a  case  out  of  the  statute  of  limitations,  the  promise 
must  be  certain  or  capable  of  being  rediTced  to  a  certainty,  and 
the  claim  sued  on  identified,  as  that  in  regard  to  which  the 
promise  was  made.  Hence,  where  an  account  was  presented  to 
the  defendant  and  he  said  "  I  reckon  it  is  correct,  but  1  have 
sets  off  against  it,  and  would  ratheV  settle  with  the  plaintiff 
myself,"  and  tlie  witness  could  not  say  certainly  that  the  account 
exhibited  on  the  trial  was  that  which  was  presented  to  de  defen- 
dant, it  ivas  held  that  this  was  not  sufficient  to  repel  the  bar  of 
the  statute.     Shaw  v.  Alien,  Busb.,  58. 

77.  A  vague  admission  of  indebtedness,  or  a  promise  to  pay 
an  indefinite  sinn,  aviU  not  repel  the  bar  of  the  statute;  e.  g.,  a 
declaration  of  the  defendant  that  he  intended  to  pay  the  plaintiff 
for  his  services,  no  sum  being  named  and  no  account  being 
referred  to,  or  other  matter  by  which  the  amount  might  be 
reduced  to  a  certaiuty.     MeBride  v.  Gray,  Busb.,  420. 

78.  The  six  months,  within  which  an  action  on  the  case  for  words 
spoken  must  be  brought,  are  lunar  and  not  calendar  months,  under 
the  act  Rev.  Stat.,  ch.  65,  see.  3.  Rives  v.  Gidlirie,  1  Jones,  84.  (See 
Rev.  Code,  ch.  65,  sec.  3;  but  now  by  the  Rev.  Code,  ch.  108,  sec. 
2,  par.  3,  a  month  is  to  be  taken,  when  iised  in  a  statute,  to 
raean  a  calendar  month  unless  it  is  otherwise  expressed.) 

79.  To  take  a  claim  out  of  the  operation  of  the  statute  of  lim- 
itations, there  mus^t  be  a  promise,  express  or  implied,  to  pay  a 
certain  and  definite  sum,  or  an  amount  capable  of  being  reduced 
to  a  certainty  by  reference  to  some  paper,  or  by  computation,  or 
in  some  other  infallible  mode,  not  depending  on  the  agreement 
of  the  parties,  or  the  finding  of  arbitrators  or  a  jury.  BIcRae  v. 
Leary^  1  Jones,  Dl. 

80.  A  promise  to  ]iay  such  sum  as  the  plaintiff  might  deem 
just,  when  he  should  bring  forward  his  account,  will  not  repel  the 
bar  of  the  statute.     Long  v.  Jameson,  1  Jones,  476. 

81.  Where  an  agent  of  the  plaintiff,  having  in  his  possession 
several  notes  and  an  account  against  the  defendant,  demanded 
payment,  but  did  not  show  him  the  account  uor  state  its  amount, 
and  the  defendant  replied  that  "  he  had  claims  against  the  plain- 
tiff and  would  see  him  and  settle,"  and  another  agent  presented 
him  the  account  together  with  certain  notes,  but  the  defendant 
did  not  examine  the  account,  and  the  agent  did  not  tell  him  the 
amount  of  the  account,  though  he  did  tell  him  the  amount  of 
both  notes  and  account,  to  which  defendant  said  "  he  would 
call  at  plaintiff 's  store  and  settle,  or  attend  to  it;"  it  ivas  held 
that  neither  of  these  declarations  of  the  defendant  amounted  to 
a  recognition  of  any  certain  debt,  so  as  to  take  the  account  out 
of  the  operation  of  the  statute.  Loftin  v.  Aldridge,  3  Jones, 
S28. 


LIMITATIONS— STATUTE  OF— 11. 

82.  The  act  of  1852,  ch.  51,  sec.  2,^,providing  "that  the  time, 
during  which  the  parties  to  a  suit  shall  not  have  been  resident 
in  this  state,  shall  not  be  given  in  evidence  in  support  of  the 
plea  of  the  statute  of  hmitations, "  did  not  apply  to  and  revive 
claims  barred  before  its  passage.  Phillips  v.  Cameron,  3  Jones, 
390.  (The  act  of  1852  was  not  re-enacted  in  the  Eev.  Code;  see 
ch.  65.) 

83.  To  say  of  actionable  words  spoken,  which  were  barred  by 
the  statute  of  limitations,  "  I  never  denied  speaking  those  words, 
and  I  will  stand  up  to  them,"  is  only  an  acknowledgment  by  the 
defendant  that  he  had  spoken  the  words,  and  not  a  repetition  of 
them,  which  if  made  within  six  mimths  would  prevent  the  bar 
of  the  statute.     Fox  v.  Wilson,  3  Jones,  485. 

84.  Where  an  unsealed  note,  payable  to  bearer,  was  transfer- 
red by  delivery  to  several  holders  successively,  and  after  three 
years  from  its  maturity  a  suit  was  bri^ught  on  it,  it  ivas  held  that 
a  new  promise,  made  to  a  previous  holder,  could  not  avail  a  sub- 
sequent holder  to  repel  the  statute.  Thomjjson  v.  Gilreaih,  3 
Jones,  493. 

85.  When  an  action  of  debt  is  brought  on  a  simple  contract, 
no  subsequent  promise,  however  explicit,  can  be  relied  on  to  lake 
it  out  of  the  operation  of  the  statute  of  limitations.  Brannock 
V.  B  iihinell,  4  Jones,  33. 

86.  Where  there  was  an  agreement  to  pay  a  debt  in  good  cash 
notes,  which  was  barred  by  the  statute  of  limitations,  and  after- 
wards, within  three  years  before  the  bringing  of  the  suit,  the 
debtor,  who  was  applied  to  for  a  certain  balance  alleged  by  the 
plaintiff  to  be  still  due,  said  he  would  "  settle  and  make  all  right 
in  good  cash  notes,"  to  which  the  plaintilf  assented,  it  vms  held 
that  as  the  original  and  new  promise  were  made  between  the 
same  parties  and  were  to  do  the  same  thing,  the  bar  of  the  stat- 
ute was  repelled;  and  that  in  such  case  tlie  replication  to  the 
plea  of  the  statute  was  a  general  and  not  a  special  one.  Mc- 
Curryy.  3IrKesson,  4r  Jones,  blO. 

87.  As  a  promisory  note  payable  on  demand  is  due  immedi- 
ately, it  will  be  barred  by  the  statute  after  three  years.  Cald- 
well V.  Rodman,  5  Jones,  139. 

88.  Where  the  account,  on  which  an  action  was  brought,  was 
read  over  to  the  defendant,  who  said  "  he  supposed  it  was  right, 
and  was  willing  to  settle,  and  give  his  note,vbut  he  thought  the 
plaintiff"  had  not  given  him  all  the  credit  to  which  he  was  en- 
titled," it  was'  held  that  there  was  nothing  in  this  expression  to 
rebut  the  statute.     3Iiils  v.  Taher,  5  Jones,  412. 

89.  The  act  of  1848,  Kev.  Code,  ch.  (55,  sec.  10,  saving  causes 
of  action  against  non-residents  from  the  operation  oi  the  statute 
ot  limitations,  applied  to  causes  of  action  existing  at  the  time 
when  the  act  went  into  effect,  provided  they  had  not  then  been 


LIMITATIONS— STATUTE  OF— 11.  889 

''tarred  by  a  previous  act  of  limitations.     Cox  v.  Broivn,  6  Jones, 
100. 

90.  Tlie  bar  of  the  statute  of  limitations  is  not  repelled  by 
the  sending  of  a  draft  by  the  debtor  and  its  receipt  by  the  cred- 
itor within  three  years,  if  the  debtor  did  not  njake  any  allusion 
to,  or  recognition  of  the  account,  or  any  debt  whatever,  ^w.s- 
sey  V.  B/ir<jivyn,  ()  Jones,  385. 

91.  When,  in  an  account  consisting  of  several  items,  the  last 
is  within  three  years  before  suit,  the  effect  will  not  be  to 
bring  the  whole  account  within  date,  uidess  it  appear  that 
there  were mutiial  accounts  between  the  parties,  or  an  account 
of  mutual  dealings  between  them  kept  by  one  with  the  knowl- 
edge and  concurrence  of  the  other.     Ibid. 

92.  A  request  by  the  endorser  of  a  promissory  note,  made  be- 
fore it  ivas  barred  by  tlie  statute  of  limitations,  that  the  endor- 
see would  collect  it  or  release  him  soon,  is  not  an  acknowledg- 
ment from  which  a  ivew  promise  to  pay  can  be  implied,  so  as  to 
repel  the  bar  of  the  statute.      Fas's  v.  Conrad,  7  Jones,  87. 

93.  A  judgment  of  nonsuit  is  within  the  equity  of  the  proviso 
to  the  8th  section  of  the  Odth  chapter  of  the  Revised  Code,  and 
the  plaintiff"  may  commence  a  new  action  within  a  year  after  the 
termination  of  the  ffrst.     Fresbwafer  v.   BaJcer,  7  Jones,  255. 

94.  Where,  upon  the  transfer  of  a  note,  an  endorsed  credit 
was  6verlooked,  so  that  the  endorsee  of  the  note  paid  the  full 
amount  called  for  in  the  face  of  the  paper,  and  afterwards  on 
being  applied  to,  the  endorser  corrected  the  mistake  and  paid 
back  tlie  amount  of  the  credit  which  had  been  overlooked,  it 
was  Jield  that  this  was  no  promise  express  or  implied  to  pay  the 
note  nor  an  acknowledgment  of  a  subsisting  debt,  so  as  to 
repel  the  bar  of  the  statute.     Gilmer  v.  McMurray,  7  Jones,  479. 

95.  Where  a  statiite  incorporating  a  company  gave,  as  a  reme- 
dy for  the  recovery  of  the  subscription  of  stock,  a  sale  of  the 
stock  within  three  years  after  an  assessment,  and  then  a  suit  for 
the  balance  due,  it  ivas  held  that  the  statute  of  limitations  would 
not  bar  the  suit  until  three  yeai's  after  the  sale  of  the  stock,  be- 
cause no  balance  could  be  ascertained  until  such  sale.  Cape 
Fear  and  Deep  River  Naviqa.tion  Company  v.  Wileox,  7  Jones, 
481.  .  ■ 

9().  The  time  which  elapsed  during  the  residence  of  a  party  in 
another  state,  while  the  act  of  1852,  ch.  51,  sea  2,  was  in  force, 
was  held,  not  to  operate  as  a  bar  under  the  statute  of  limitations, 
though  that  act  was  repealed  before  the  statute  of  limitations 
was  pleaded.     Do<j<jttt  v.  Mosely,  7  Jones,  587. 

See  (Executors  and  Administrators — Of  suits  by  executors  and 
administrators,  11.)  (Executors  and  Administrators — Of  refund- 
ing bonds  taken  fi'om  legatees  and  next  of  kin,  2.)  (Husband 
and  Wife — Of  actions  by  and  against  husband  and  wife,   12.) 


890  LIMITATIONS— STATUTE  OF— II-III-IV. 

(Limitations — When  the  statirte  begins  to  rnn.)      (Practice — 
Discontinuance — Death  of  the  parties,  6.) 

HI.       LIMITATION  OF  ACTIONS  ON  OFFICIAL  BONDS. 

1.  Where  a  suit  on  sheriff's  bond  was  suffered  to  abate  as  to 
one  of  the  ^ureties  who  died,  although  a  sci.  fa.  against  his  rep- 
resentatives was  ordered,  and  was  dismissed  as  to  the  other  par- 
ties after  having  pended  for  many  years;  but  before  this  dismis- 
sion, though  after  more  tlian  three  years  had  elapsed  since  the 
death  of  the  surety,  another  action  was  brought  against  his  rep- 
resentatives, it  UK(s  hehJ,  that  the  statute  barred  the  action  under 
the  act  of  1810,  notwithstanding  the  pendency  of  the  former  suit 
or  the  order  for  the  sci.  fa.  Governor  v.  FranMin.,  3  JMurph.,  213 
(Suits  on  bonds  of  sheriffs  are  now  barred  after  six  years.  Eev. 
Code,  cli.  65,  sec.  5.) 

2.  An  action  on  a  sheriffs  official  bond,  which  is  barred  by  the 
statute,  cannot  be  revived  by  a  promise  to  pay  within  three 
years,  whatever  remedy  there  may  be,  if  any,  on  the  promise  it- 
self     Governor  v.  Hnnrahan,  4  Hawks,  44. 

3.  A  suit  on  the  official  Doiid  of  a  sheriff,  who  has  been  fixed 
with  the  payment  of  a  certain  amount  as  special  bail,  is  not 
barred  so  as  to  protect  his  sureties,  until  six  years  a  ter  final 
judgment  against  him  as  bail.     Barker  v.  3[miroe,  4  Dev.,  412. 

4.  An  action  commenced  oy  a  warrant  against  the  sureties  of 
a  constable  for  money  collected  by  him,  under  the  Rev.  Stat.,  ch. 
81,  sec.  3,  can  be  barred  only  by  the  length  of  time  that  bars  an 
action  on  the  constable's  bond.  Wilson  v.  Coffield.,  5  Ired.,  513. 
(See  Rev.  Code,  ch.  78,  sec.  4.) 

5.  Where  a  constable  receive  claims  on  solvent  persons  to  col- 
lect, in  Febniary,  1842*,  and  the  suit  on  his  official  bond  was  com- 
menced in  October,  1848,  it  was  held  that  the  suit  was  not  barred 
by  the  statute.     State  v.  Pattori,  13  Ired.,  421. 

6.  The  act  of  liinitatioii  as  to  official  bonds.  Rev.  Stat.,  ch.  65, 
eec.  8,  bars  the  action  on  the  bond  of  a  clerk  brought  for  his  not 
paying  over  fines  and  forfeitures,  if  not  commenced  within  six 
years  from  the  end  of  three  months  after  he  has  received  them, 
and  not  within  six  years  from  the  time  when  a  demand  was 
made  for  them.  Little  v.  Riclmrdson^  6  Jones,  305.  (See  Rev, 
Code,  ch.  65,  sees.  5  and  ch.  2^,  sees.  6  and  7.) 

IV.   EFFECT  OP  THE  STATUTE  UPON  THE  TITLE  TO  SLAVES. 

1.  An  adverse  possession  of  a  slave  for  three  years  confers  on 
the  possessor  a  complete  title  to  the  slave.  Gall  v.  Ellis.,  10  Ired., 
250.  (The  same  principle  is  now  extended  to  "  other  personal 
property."     See  Rev,  Code,  ch.  65,  sec.  20.) 

2.  An  adverse  possession  for  three  years  of  one,  who  is  in  fact 


LIMITATIONS— STATUTE  OF— IV-V.  891 

a  slave,  will  confer  a  title  on  the  possessor,  though  he  may  think 
the  slave  to  have  been  free,  and  only  kept  him  until  some  person 
could  show  a  good  title  to  him  as  a  slave,  ^tate  v.  Jones,  11 
Ired.,  154. 

3.  If  a  parent  places  a  slave  in  tlie  possession  of  his  child  upon 
his  or  her  marriage,  and  afterwards  bequeaths  the  slave  to  a 
third  person,  the  possession  ot  the  child  upon  the  death  of  the 
parent  will  become  adverse  to  the  legatee,  and  if  continued  for 
more  than  three  years,  will  confer  the  title  upon  the  possessor. 
Cotten  V.  Davis,  4  Jones,  416. 

4.  Where  a  slave  was  placed  by  a  father  in  the  possession  of 
his  daughter,  and  remained  thereuntil  his  death,  after  which  an 
issue  was  made  up  to  try  the  validity  of  his  will,  which  pended 
eight  years,  when  the  will  was  established,  it  iims  held  that 
a  demand  made  by  the  administrator  ^je?/c?e?i'e  lite,  and  a  refusal, 
did  not  make  the  daughter's  possession  adverse  to  the  right  of 
the  executor,  and  that  he  Avas  not  barred  by  the  possession  for 
more  than  three  years  under  such  circumstances.  Wooten  v. 
Jarmoii,  6  Jones,  111. 

5.  ^^'here  a  person  takes  possession  of  slaves  as  a  bailee,  and 
afterwards  continues  to  hold  them,  claiming  them  as  his  own, 
but  without  doing  any  act  to  change  the  nature  of  his  possession, 
he  cannot  acquire  a  title  to  them  under  the  statute  of  limitations. 
Koonce  v.  Perry,  8  Jones,  58. 

See  (Gifts— Of  slaves  since  the  act  of  1806,  7-13-14.)  Slaves 
— Sales  and  gifts  of  slaves,  16.) 

V.       AS    TO    SCITS   AGAINST    EXECUTORS,    ADMINISTRATORS,    HEIRS     AND    DE- 
VISEES. 

1.  These  words  used  by  one  of  two  administrators  when  the 
note  of  his  intestate  was  presented :  "  it  is  the  signature  of  the 
deceased,  and  all  his  just  debts  shall  be  paid  when  the  Holly 
Shelter  lands  shall  be  sold,"  were  held  to  take  the  case  out  of 
the  statute  of  limitations.     Cobham  v.  Creedon,   2  Hay.,  6,  (152.) 

2.  The  statute  begins  to  run  only  from  the  time  when  letters 
of  administration  are  first  obtained.  Tuson  v.  Simpson,  2  Hay., 
147,(321.)  i       '  J' 

3.  The  act  of  1715,  barring  claims  against  deceased  persons' 
estates,  is  in  force.  Young  v.  Farrell,  2  Hay.,  219,  (392.)  S.  P. 
Bry  V.  Boper,  Conf  Rep.,  311,  (397.)  (But  it  was  held  to  be 
repealed  by  the  act  of  1789,  in  Ogden  v.  Witherspoon,  2  Hay., 
227,  (404.)  It  was  expressly  continued  in  force  by  the  act  of 
1799.     See  Rev.  Code,  ch.  65,  sec.  11.) 

4.  It  seems  that  the  admission  of  a  debt  of  the  intestate  by  an 
administrator  will  not  take  the  case  out  of  the  statute  of  limita- 
tions.     Wilkings  v.  Marphj,  2  Hay.,  282,  (460.) 

5.  The  act  of  1715,  (see  Rev.  Code,  ch.  65,  sec.  11,)  requiring 


892  LIMITATIONS— STATUTE  OF— V. 

creditors  of  a  deceased  person  to  make  their  claim  within  seven 
years  after  the  death  of  the  debtor,  makes  no  saving  for  any 
description  of  person,  and  where  the  act  makes  none  the  court 
conrt  cannot  make  any.     Bidhi/  v.  Thorpe,  2  Hay.,  34,  (525.) 

G.  If  the  first  seven  years  after  the  death  of  the  debtor 
cannot,  for  any  cause,  be  computed,  the  next  seven  may.     Ihid. 

7.  The  act  of  1715,  while  it  was  unrepealed,  was  suspended 
in  its  operation  by  the  acts  disqualifying  British  adherents  from 
suing  in  our  courts.  It  did  not  begin  to  operate  as  to  such  per- 
sons till  the  end  of  the  war,  and  then  if  the  seven  years  were 
not  completed  before  it  was  repealed  (if  it  were  so,  qu.,)  by  the 

act  of  17(S9,  no   bar  could  ever  be   operated  under  it. v. 

Leu-is,  2  Hay.,  o4(J,  (5o().) 

8.  A  plea  of  the  statute  of  limitations,  not  being  a  plea  to  the 
merits,  shall  not  be  added  after  the  pleadings  are  once  made  up; 
therefore  an  executor  will  not  be  allowed  to  add  the  plea  of  the 
act  of  1715,  if  he  neglect  it  at  first.  CcunjMl  v.  Hester,  Tay. 
78,  (54.)  ((^1.,  and  see  ReidY.  Hester,  Conf  Eep.  488,  (540,)  and 
other  cases.) 

9.  The  act  of  1715  will  bar  a  debt  due  on  bond,  though  there 
be  no  person  entitled  to  sue.  McGlellan  v.  Hill,  Conf  llcp.  479, 
(582.)  (See  this  case  corrected  in  Jones  v.  Brodic,  3  Murph.. 
594.) 

10.  The  act  of  1715  will  bar  an  action  by  a  county  trustee 
against  the  executors  of  a  county  ranger,  for  money  received  in 
that  character  by  their  testator,  where  more  than  seven  years 
had  elapsed  from  his  death  to  the  bringing  of  the  action. 
Alexander  v.  Alexander,  1  Cai-.  L.  R.,  273,  (28.) 

11.  ^Yhere  a  lessee  for  fourteen  years  covenanted  in  an  inden- 
ture of  lease  to  pay  an  annual  rent  during  the  term,  and  died  at 
the  expiration  of  four  years,  it  tviis  lield  in  an  action  against  his 
executors,  brought  soon  after  the  term  had  expired,  for  the  rent 
which  liad  never  been  paid,  that  the  suit  was  barred  by  the  act 
of  1715,  because  the  action  was  founded  upon  tlie  possession  of 
the  testator,  and  his  pernancy  of  the  profits,  and  the  executors 
were  liable  oidy  as  his  representatives.  Neil  v.  Hosmer,  1 
Murph.,  202. 

12.  The  act  of  1789  cannot  be  pleaded  and  relied  on  in  an 
action  of  dei)t,  brtjnght  against  the  devisees  on  the  bondof  their 
devisor.  HoUoioell  v.  Pope,  2  xMurph.,  i08,  S.  C.  1  Car.  L.  K.  221, 
(17.)     (See  Rev.  Code,  ch.  G5,  sec.  12.) 

13.  The  words  of  the  act  of  1789  do  not  provide  any  limita- 
tion for  suits  brought  against  heirs  and  devisees,  nor  are  they 
within  its  equity  or  spirit.  The  act  of  1715  (see  Rev.  Code,  ch. 
65,  sec.  ]  l,^  was  intended  to  protect  the  heir  and  every  part  of 
the  estate  from  the  demands  of  creditors,  and,  therefore,  fixes 
the  death  of  the  debtor  as  the  period  from  which  the  time  is  to 
be  computed,  and  does  not  require  the  demand  to  be  made  of  the 


LIMITATIONS— ST ATUTE  OF— V.  893 

executor,  but  leaves  the  enquiry  from  whom  the  demand  is  to  be 
made  to  be  determined  by  the  nature  of  the  debt  itself  If  by 
the  nature  of  the  contract  the  heir  is  liable,  the  demand  may  be 
made  either  of  him  or  the  executor  If  the  heir  be  not  liable,  the 
demand  must  be  mode  of  the  executor  only.  The  act  of  1789 
was  desig;'ned  to  protect  the  executor  from  such  demands  as  he 
alone  is  liable  for  in  the  first  instance,  or  such  as  the  creditor 
ma}^  elect  to  enforce  against  him,  and  therefore  fixes  the  quali- 
fication of  the  executor  as  the  period  from  which  the  time  is  to 
be  computed.     Ibid. 

14.  Under  the  act  of  1715,  barring  the  claims  of  creditors 
against  deceased  persons'  estates,  two  circumstances  must  con- 
cur to  put  the  bar  in  operation,  to  wit,  the  death  of  the  debtor, 
and  the  simultaneous  existence  of  the  creditor.  If,  thereibre, 
the  creditor  die  before  the  debtor  and  no  administration  be  taken 
out  on  his  estate  in  the  lifetime  of  the  debtor,  the  act  will  not 
bar  the  claim.  When  the  statute  of  limitations  begins  to  run, 
nothing  v/ill  sto]3  its  operation,  and  if  therefore  a  debtor  die  in 
the  lifetime  of  his  croditor,  whose  cause  of  action  has  accrued, 
the  act  will  attach  upon  the  claim  of  the  creditor,  although  no 
administration  be  taken  out  on  his  estate  for  more  than  seven 
years.     Jones  v.  Brodie,  o  Murjjh.,  594. 

15.  There  being  in  the  act  of  1715  no  saving  of  the  rights  of 
persons  rmder  any  incapacity,  tliat  act  is  a  bar  to  the  claim  of 
an  infant  creditor  of  the  decedent,  brought  more  than  seven  years 
after  bis  death.     Rayner  v.   Walford,  2  Dev.,  338. 

1(1  The  act  of  1715  is  a  protection  both  to  the  executor  and 
the  heir,  and  the  act  of  1784  (since  repealed,)  and  the  act  of 
1809,  directing  the  surplus  to  be  paid  into  the  treasury  and  to 
the  University,  do  not  affect  the  real  assets,  but  only  apply  to 
the  personal  estate,  and  give  a  remedy  to  the  creditors,  &c., 
against  the  State  and  the  University,  without  affecting  the  pro- 
tection given  to  the  execukn-  by  the  act  of  1715.     Ibid. 

17.  Tiie  statute  never  begins  to  run  until  a  cause  of  action  has 
accrued,  as  well  as  until  there  is  a  claimant  in  existence;  there- 
fore where  the  cause  of  action  accrued  more  than  seven  years 
after  the  death  of  a  testator,  the  action  against  his  executor  was 
held  not  to'be  barred  by  the  act  of  1715.  Godley  v.  Taylor,  3 
Dev.,  178. 

18.  Where  an  action  was  brought  upon  a  covenant  for  quiet 
enjoyment,  made  by  a  decedent,  and  the  eviction  took  place  more 
than  seven  years  after  his  death,  it  vjus  hdd  that  the  action  was 
not  barred  by  the  act  of  1715.     Ibid. 

19.  If  an  executor  has,  after  seven  years,  paid  the  assets  over 
to  the  University,  he  is  not  subjected  for  those  assets  to  the  clairii 
of  a  creditor,  nor  barred  by  the  act  of  1715;  but  the  issue  of  fully 
administered  must  be  found  for  liim,  and  the  creditor  must  pro- 
ceed against  the  Universitv.     Ibid. 


894  LIMITATIONS^STATUTE  OF— V. 

20.  The  4th  section  of  the  act  of  1789,  barring  creditors  of  a 
decedent  who  do  not  bring  their  suits  within  two  yoafs  aftei" 
the  qnalification  of  the  executor  or  administrator,  is  a  defence  as 
well  for  the  next  of  kin  as  for  the  personal  representative,  and 
the  latter,  in  pleading  it,  need  not  aver  that  he  has  delivered  the 
assets  to  the  former  and  taken  refunding  bonds.  Goodman  v. 
Smith,  4  Dev.,  450.     (See  Rev.  Code,  ch.  (J5,  sec.  12.) 

21.  Advertisements  required  before  the  act  of  1806,  establish- 
ing superior  courts  in  each  county,  to  be  made  at  the  district 
court  houses,  may  be  made  at  the  county  court  houst-s.   Ihid. 

22.  The  act  of  1715  will  not  operate  as  a  bar  to  creditors  not 
suing  within  seven  years  from  the  death  of  the  debtor,  when 
there  is  no  personal  representative  of  the  deceased  durijig  that 
time.     3IcKnider  v.  Littlejohn,  1  Ired.,  {]6. 

23.  Where  an  action  is  brought  against  an  obligor  and  the 
representative  of  a  deceased  obligor,  and  as  to  the  latter  the  ac- 
tion is  barred  by  the  act  barring  claims  against  deceased  persons' 
estates,  a  judgment  may  be  still  recovered  against  the  former, 
for  the  act  does  not  extinguish  the  debt,  but  only  bars  the  reme- 
dy against  the  person  to  whom  it  applies.  Bute  v.  Buie,  2 
Ired.,  87.  _ 

24.  If,  in  reply  to  the  plea  of  an  executor  of  the  act  of  1789, 
limiting  the  time  within  which  actions  shall  be  brought  against 
executors,  &c.,  the  plaintiff  wishes  to  avail  himself  of  the  prow'so 
in  that  act,  that  he  was  requested  by  the  executor  not  to  sue,  he 
must  state  the  fact  in  a  special  replication.  Hubbard  v.  Marsh, 
7  Ired.,  204.     (See  Rev.  Code,  ch,  65,  sec.  14.) 

25.  Where  it  appeared  that  payments  were  endorsed  on  the 
bond  declared  on,  subsequently  to  the  death  of  the  testator,  but 
it  did  not  appear  by  whom,  it  was  held  that  this  did  not  afford 
any  evidence  that  the  executor  had  requested  delay.     Ibid. 

26.  A  surviving  obligor  cannot  contmue  or  revive  the  liability 
of  the  estate  of  a  deceased  obligor  by  partial  payments,  obtaining 
indulgence,  or  other  means,  so  as  to  repel  the  operation  of  the 
act  above  referred  to.     Ibid. 

27.  The  17th  section  of  the  46th  ch.  of  the  Rev,  Stat.,  in  rela- 
tion to  the  time  in  which  claims  must  be  presented  against  ad- 
ministrators, was  intended  for  the  ease  and  security  of  the 
administrator,  and  a  strict  performance  is  required  on  his  part. 
Lee  V.  Patrick,  9  Ired.,  135.     (See  Rev.  Code,  ch.  46,  sec.  23.) 

28.  Under  the  act  of  1789,  an  administrator  who  has  made  ad- 
vertisement for  creditors  to  present  their  claims  within  two 
years,  but  who  has  not  taken  refunding  bonds  from  the  next  of 
kin  on  paying  the  surplus  to  them,  is  not  protected  against  the 
action  of  the  creditor  brought  after  such  advertisement  and  pay- 
ment over.  Beeves  v.  Bell,  2  Jones,  254.  (See  Rev.  Code,  ch. 
65,  sec.  12.) 

29.  The  statute  of  1789,  (Rev.  Code,  ch.   65,  sec.   12,)  which 


LIMITATIONS— STATUTE  OF— V--VL  895 

bars  claims  against  a  decedent's  estate  not  sued  for  in  t  vo  years, 
will  not  protect  the  executor  or  administrator,  unless  he  has  paid 
over  the  assets  to  the  persons  entitled,  and  taken  refunding 
bonds,  as  well  as  advertised  as  required  by  the  statute.  Cooper 
V.  Cherry,  8  Jones,  323. 

See  (Executors  and  Administrators— ^xecv/fors  de  son  tort,  2) 
(Executors  and  Administrators— Of  their  liability  to  creditors, 
&c.,  24-30.) 

VI.       AS    TO    REAL   ESTATE. 

1.  The  statute  of  limitations  as  to  land  cannot  have  any  re- 
ference to  vacant  land.     Anonymous,  1  Hay.,  4(50,  (53^1.) 

2.  The  act  of  1791,  (Rev.  Code,  ch.  65,  sec.  2,)  limiting  the 
claims  of  the  State,  is  bottomed  upon  the  presumption  of  a 
former  grant,  and,  therefore,  cannot  apply  to  lands  admitted  on 
both  sides  to  be  vacant.     Ibid. 

3.  If  seven  years  be  completed  at  a  period  of  time  occurring 
after  arrival  at  full  age,  when  part  of  the  seven  years  elapsed 
during  infancy,  the  party  has  three  years  after  his  arrival  at  age 
to  make  his  entry  or  claim,  and  no  more.  Pender  v.  Jo7ies  2 
Hay.,  294,  (479.) 

4.  Tenant  in  tail  aliens  and  dies :  (The  issue  in  tail  will  be  bar- 
red, if  he  be  under  none  of  the  disabilities  mentioned  in  the  act, 
unless  he  enter  or  claim  within  seven  years  after  his  right  to  de- 
feat the  alienee's  title  descends  to  him.  JVells  v.  Newbold,  Conf 
Rep.,  375,  (450.) 

5.  Neither  the  act  of  1800,  repealing  the  law  granting  escheated 
property  to  the  University,  nor  bringing  a  suit  by  the  escheator 
in  1801,  suspended  the  statute  as  to  the  trustees  of  the  Univer- 
eity,  whose  rigiit  was  sought  to  be  divested  by  those  acts. 
University  v.  Cam/pbell,  1  Murph.,  185. 

6.  Where  a  husband  sold  land  belonging  to  his  wife,  and  the 
vendee  remained  in  possession  seven  years,  and  also  three  years 
after  the  death  of  the  wife,  her  heirs,  who  were  under  no  disa- 
bility, were  held  to  be  barred.  Jones  v.  Clayton,  2  J\Iurph.,  G2. 
(Overruled,  see  Fagan  v.   Wallxer,  5  Ired.,  034.) 

7.  The  death  of  a  tenant  before  seven  years  will  not  stop  the 
running  of  the  statute,  provided  the  possession  is  continued  a 
Bufficient  time  after  his  death  by  his  heirs,  or  others  claiming 
under  him.     University  v.  Blount,  N.  C.  Term  R.  13,  (455.) 

8.  When  the  statute  begins  to  run,  no  subsequent  disability 
will  stop  it.  Tl>erefore,  where  an  ancestor  brought  an  ejectment 
within  a  year  after  his  title  accrued,  and  continued  to  prosecute 
it  until  it  abated  by  his  death,  at  which  period  his  heirs  at  law 
were  infants,  and  they  brought  another  ejectment  within  three 
yeors  after  their  arrival  at  full  age,  but  more  than  seven  years 


896  LIMITATIONS— STATUTE  OF— VI. 

after  the  title  of  the  ancestor  accrued,  it  ivas  lieldihsii  they  were  - 
barred.     Fearee  v.  House,  N.  C.  Term  Term  R.  305.  (722.) 

7.  Where  the  right  to  land  devolved  on  an  infant,  who  died 
before  coming  of  age,  leaving  an  infant  heir  who  married  before 
arriving  at  full  age.  and  she  brought  an  action  within  three 
years  after  the  death  of  her  husband,  if,  tvas  held  that  she  was 
within  the  saving  of  the  statute,  and,  therefore,  not  barred  by 
it.      GiUiam  v.  Jacoclcs,  4  Hawks,  310. 

10.  The  saving  clause  of  the  act  of  1715  preserves  the  right 
of  one  of  several  co-heirs,  who  is  within  the  proviso,  although 
the  other  co-heirs,  being  under  no  disability,  are  barred.  Hence 
in  ejectment  on  a  joint  demise  by  three  co-heirs^  of  whom  two  are 
barred,  and  the  other  not,  because  under  disability,  the  latter  may 
recover,  while  the  action  fails  as  to  the  other  two.  31cBee  v. 
Alexander,  1  Dev.  321. 

11.  It  seems  that  the  proviso  in  the  6th  section  of  the  act  of 
1715  extended  only  to  "  actions  and  suits,"  and  did  not  include 
a  right  of  entry  or  claim  to  land,  and  as  the  action  of  ejectment 
depended  upon  the  right  of  the  lessor  of  the  plaintift  to  enter,  it 
was  not  within  the  proviso.  But  if  it  were  within  the  proviso, 
yet  the  pendency  of  a  former  action,  between  the  same  parties 
for  the  same  prennses,  would  not  prevent  the  operation  of  the 
statute  as  to  that  part,  for  which  a  verdict  passed  for  the  defen- 
dant. Morrison  v.  Connelly,  2  Dev.,  233.  (See  liev.  Code,  ch. 
65,  sec.  8.) 

12.  A  power  over  an  estate  is  regarded  as  the  estate  itself; 
and  a  possession  adverse  to  that  estate  will,  under  the  statute  of 
limitations,  bar  the  power.     PicJcet  v.  Picket,  3  Dev.,  6.  _ 

13.  In  analogy  to  this  rule,  if  a  purchaser  at  a  sheriff's  sale 
neglect  to  take  a  deed  for  seven  years,  a  possession  with  color  of 
title,  adverse  to  the  title  conveyed  by  the  sheriff,  will  bar  the 
purchaser  under  the  execution.     Ihid. 

14.  Wliere  A,  tenant  in  fee,  mortgaged  his  land  for  a  term  of 
500  years,  and  conveyed  his  reversion  in  trust  for  himself  for 
life,  and  afterwards  for  his  daughters  and  died;  and,  during  the 
continuance  of  the  mortgage  term,  B  got  possession  of  the  land 
and  retained  it  for  more  than  seven  years  under  color  of  title; 
and  afterwards  the  daughters,  the  eestdi  que  trusts  of  the  rever- 
sion, obtained  the  posse'ssion,  and  the  legal  representative  of  the 
mortgagee  made  a  release  to  them  of  the  mortgage  term,  it  was 
held  thai  the  daughters,  having  only  an  equitable  estate  in  the 
reversion,  the  release  could  not  operate  as  a  legal  extinguish-^ 
ment  of  the  term,  but,  at  most,  could  only  be  an  assignment  of 
it;  that  this  term  was  barred  by  the  statute  of  limita- 
tions, and  that,  consequently,  the  daughters  could  not  defend 
their  possession  against  an  ejectment  brought  by  those  claim- 
ing under  B.     Gicyn  v.  Wdiborn,  1  Dev.  and  Bat.,  313. 

15.  But  though  a  tenant  for  years  may  be  barred  by  the  stat- 


LIMITATIONS— STATUTE  OF— VL  897 

lite  of  limitations,  yet  the  reversioner  will  not  be  affected  there- 
by, nntil  the  expiration  or  extinguishment  of  the  terra;  there- 
fore if,  in  the  case  stated  above,  the  representative  of  the  mort- 
gagee had  received  satisfaction  from  the  trustee  and  surrendered 
the  term  to  him,  he,  or  his  cestui  que  trusts  holding  for  him, 
would  Jiave  become  entitled  to  the  legal  possession  of  the  land, 
and  might  have  defended  it  against  the  ejectment.     Ibid. 

16.  Although  the  statute  of  limitations  may  have  run  against 
and  barred  one  claiming  as  heir,  who  was  in  existence  at  the 
time,  yet  it  shall  not  affect  a  preferable  heir  who  was  not  then 
in  existence,  for  the  latter  heir  does  not  come  in  under  the  first 
heir,  but  above  him,  and  is  not,  therefore,  bound  bv  his  acts. 
Caldwell  V.  Black,  5  Ired.,  463. 

17.  A  person  suing  in  ejectment,  who  was  under  a  disability 
wdiieh  prevented  the  statute  from  running  against  him,  is  enti- 
tled to  recover  his  share,  although  there  are  tenants  in  common 
with  him,  whose  right  of  action  is  barred  by  the  statute.     Ibid 

18.  An  action  of  ejectment  by  husband  and  wife  is  not  barred 
by  the  statute  of  liinitations,  although  the  defendant  may  have 
been  seven  years  in  possession  under  color  of  title,  the  posses- 
sion having  commenced  during  the  disability  of  the  w^ife.  Ibid. 

19.  Where  a  husband  and  wife  sold  land  l)elonging  to  the 
wafe  by  a  deed  purporting  to  convey  a  fee  simple,  she  not  having 
acknowledged  the  coiiveyance  so  as  to  pass  her  title,  and  the 
bargainee  took  and  held  possession  under  such  conveyance,  it 
ivas  held  that  neither  she,  nor  her  heirs,  if  she  died  during  the 
coverture,  w-ere  barred  from  asserting  her  or  their  title  by  the 
statute  of  limitations,  until  after  the  lapse  of  seven  years  from 
the  death  of  her  husband,  the  possession  of  the  bargainee  not 
having  become  adverse  to  her,  or  them,  until  the  death  of  the 
husljand.     Fa(/aji  v  IVall'er,  5  Ired.,  634. 

20.  Where,  in  an  action  of  ejectment,  the  defendant  relied 
upon  the  statute  of  limitations,  and  the  evidence  was  tliat  the 
defendant  and  A,  under  whom  he  claimed,  had  been  seven  years 
in  actual  possession,  except  for  the  space  of  four  or  five  months, 
an  interval  that  elapsed  between  the  time  when  a  tenant  of  A 
left  the  premises,  and  the  time  when  the  defendant  entered  un- 
der his  purchaser,  it  ivas  held  that  the  interval  between  the  two 
occupations  Avas  too  hmg  to  found  a  presumption  on  of  a  contin- 
ued possessi(Mi,  in  the  aljsence  of  any  intermediate  act  of  0A\iier- 
ship  l)y  x\,  or  any  one  under  him.  SJiaw  v.  iShepard,  6  Ired., 
361. 

21.  In  cases  of  adverse  possession  of  land,  the  statute  of  limi- 
tions  begins  to  run  from  the  ouster.  If  the  one  having  the  right 
be  a  feme  covert,  and  the  seven  years  liave  expired  in  the  life 
time  of  her  husband,  she  has  three  years,  and  only  three,  after  the 
death  of  her  husband,  within  which  to  commence  her  suit;  when 
the  seven  years  have  not  expired  in  the  life  time  of  her  husband, 

15* 


898  LIMITATIONS— STATUTE  OF— VI. 

the  two  periods  of  seven  years  from  the  ouster  and  three  yenrs 
Ironi  the  death  of  her  husband  are  concurrent,  until  one  of  them 
sliall  liave  run  out,  and  then  the  feme  in  entitled  to  the  other  and 
longer  period  to  enter  or  sue.      Orumjj  v.  Tlwrrqjson,  9  Ired.,  491. 

22.  The  last  jjroviso  to  the  1st  section  of  the  statute  of  limita- 
tions, Eev.  Stat.,  eh.  65,  sec.  1,  extends  to  cases  where  the  plain- 
tiff has  been  non-suited,  as  well  as  to  those  in  which  a  verdict 
has  been  found  against  him.  LofKjy.  OrrcU,  13  Ired.,  123.  (See 
Kev.  Code,  <;h.  65,  sec.  1.) 

23.  Where  there  are  several  demises  of  divers  persons  in  the 
lirst  action  of  ejectment,  it  is  not  necessary  that  a  demise  from 
each  of  those  persons  should  be  laid  in  the  declaration  in  the 
second  action,  but  it  is  sufficient  tor  the  second  declaration  to 
be  on  the  single  demise  from  that  one  or  more  of  the  lessors  in 
the  former  suit,  in  whom  the  title  is  found  to  have  been ;  for  the 
count  in  each  of  the  several  demises  is,  in  law,  the  same  as  a 
separate  action,  and,  therefore,  the  title  of  each  person  is  saved, 
who  was  a  several  lessor  in  such  action.     Ibid. 

24.  J3y  brmging  an  action  of  ejectment,  a  party  then  having 
the  right  of  entry  shall  continue  to  have  it,  as  long  as  that  action 
jjends,  and  afterwards,  also,  if  within  one  year  altcrwards  he 
will  bring  another  action,  and  so  on  from  time  to  time,  no  matter 
who  may  be  at  the  time  the  tenant  in  possession.     Ibid. 

25.  An  attempt  to  procession  land  under  the  act  Eev.  Stat., 
oh.  91,  is  not  embraced  in  the  last  proviso  to  the  1st  section  of 
the  statute  &f  limitations,  Rev.  Stat.,  ch.  65,  so  as  to  prevent 
.actions  =of  ejectment  from  being  barred,  if  brought  within  one 
year  after  a  failure  to  recover  in  a  preceding  section.  Crump  v, 
"Thompson,  13  Ired ,  150.  (See  Rev.  Code,  ch.  88  and  ch.  65,  sec.  1.) 

26.  Coverture  is  not  a  saving  against  the  operation  of  the 
•statute  ol  limitations  as  to  land,  unless  the  wife  must  be  joined 
with  the  husband  in  order  to  sustain  the  action ;  but  where  he 
may  sue  alone,  or  may  join  his  wife  with  him,  at  his  election,  the 
.statute  bars.     Halford  v.  Tetheroio,  2  Jones,  393. 

27.  When  an  eviction  from  land  takes  place  during  coverture, 
■the  husband  may  sue  alone,  or  may  join  his  wafe;  and  he  may, 
therefore,  in  such  case  be  barred  by  the  statute.     Ibid. 

28.  The  proviso  for  a  new  action  within  a  year  after  a  plaintiif 
has  suffered  a  nonsuit,  as  a  saving  against  the  statute  of  limita- 
tions, means  that  there  must  be  some  real  parties  plaintiff  and 
the  same  cause  of  action  in  both,  but  there  need  not  be  the  saipe 
defendant  in  the  new  as  in  the  former  action ;  nor  does  the  fact 
that  the  new  action  contains  a  second  count  upon  the  demise 
of  othei  persons  make  any  difference.  Williams  v.  Council,  4 
Jones,  206. 

29.  The  proviso  in  the  statute,  as  a  saving  to  an  infant,  is  a 
personal  profedion,  and  the  grantee  or  releasee  of  the  infant  has 
no  right  to  its  protection.     Ihid. 


LIiMITATION&-STAT0TE  OF-VI.-LIT.  BOA^RD,  ETC.  899 

30.  "Where  an  estate  in  land  was  limited  to  one  for  life,  witli  a 
remainder  to  a  woman  who  married  during  the  life  estate,  it  teas 
Jueld  that  she  was  not  barred  by  seven  years  of  adverse  possession 
after  the  termination  ot  the  life  estate,  when  it  appeared  that 
she  had  brouglit  suit  within  one  year  after  the  death  of  her 
husband.     McLane  v.  Moore,  6  Jones,  520. 

31.  Where  the  father  of  a  married  woman  died  seized  of  a 
tract  of  land,  it  teas  held  that  according  to  the  laws  of  this  State 

the  daughter  became  actually  seized  of  the  land  by  descent, 
which  made  her  husband,  who  had  children  by  her,  tenant  by 
the  curtesy  initiate,  -and  that  he  might  be  barred  by  an  adverse 
possession  of  seven  years  under  color  of  title.  CJdlders  v. 
Bumgarncr,  8  Jones,  297. 

32.  The  children  of  a  person,  entitled  to  an  estate  as  tenant  by 
the  curtesy,  are  allowed  seven  years  after  the  death  of  their 
father  before  they  are  barred  by  the  statute  of  limitations.    Ihid. 

See  (Ejectment — Of  the  title  necessary  to  support  the  action.) 
(Estoppel — By  Deed,  38.)  (Grant — How  and  when  grants  may 
be  avoided,  li3-21.)  (Limitations — When  the  statute  begins  to 
run,  3-9-1 3-28. )  ( Possession,  22,  23,  29. )  {Power,  4. )  (Widow— 
Of  her  dower,  12.) 


LITERARY  BOARD. 

1.  The  President  and  Directors  of  the  Literary  Board  have  no 
right  to  allow,  and  are  not  bound  to  pay,  their  secretary  a  per  diem 
compensation,  for  a  greater  number  of  daj's  than  theyare  actually 
in  session.     Battle  v.  Literary  Board,  6  Ired.,  203. 

2.  When  the  Board  passed  a  resolution,  that  their  secretary 
should  be  allowed  so  much  |3er  diem  while  he  was  employed,  the 
construction  is,  that  he  was  allowed  the  per  diem  pay  only  while 
the  Board  itself  was  in  session.     Ihid. 


LUNATICS. 

See  (Idiots  and  Lunatics.) 


900  MAD  DOGS— MAIMING. 

MAD  DOGS. 

1.  In  an  action  under  the  act,  Rev.  Stat.,  cli.  70,  giving  a  penalty 
of  $50  against  the  owner  of  a  dog,  if  he  have  good  reason  to 
believe  that  he  was  bitten  by  a  mad  dog,  and  neglect  or  refuse 
to  kill  him  immediately,  it  is  not  necessary  to  prove  that  the 
bitino-  dog  was  in  fact  mad;  it  being  sufficient,  if  the  owner  of 
the  dog  bitten  had  good  reason  to  believe  that  the  other  dog  was 
mad.      Wallace  v.  Douglass,  10  Ired.,  79.     (See  Rev.  Code,  ch.  67.) 


MAIMING. 

1.  On  an  indictment  for  maiming  under  the  act  of  1791.  (see 
Rev.  Code,  ch.  34,  sec.  14,)  the  malicious  intent  to  maim  or  dis- 
figure may  either  be  express  or  implied  from  circumstances ;  and 
it  is  not  necessary  to  prove  antecedent  grudges,  threatenings  or 
an  express  design,     titate  v.  Irwin,  1  Hay.,  112,  (130.) 

2.  Where  an  outrageous  act,  as  a  maim,  is  proved,  the  law 
presumes  that  it  Avas  done  with  that  disposition  of  mind  which 
the  law  requires  to  constitute  guilt,  until  the  contrary  is  shown. 
State  V.  Evans,  1  Hay.,  281,  (325.) 

3.  In  an  indictment  under  the  48th  section  of  the  34th  chap- 
ter of  the  Revised  Statutes,  an  intent  to  disfigure  is  prima  facie 
to  be  inferred  from  an  act  which  does  in  fact  disfigure,  unless 
that  presumption  be  repelled  by  evidence  on  the  part  of  the  ac- 
cused of  a  different  intent,  or  at  least  of  the  absence  of  the  in- 
tent mentioned  in  the  statute.  State  v.  Girhin,  1  Ired.,  121. 
(See  Rev.  Code,  ch.  34,  sec.  47.) 

4.  It  is  not  necessar}^,  in  an  indictment  under  this  statute,  to 
prove  malice  aforethought,  or  a  preconceived  intention  to  com- 
mit the  maim.     Ibid. 

5.  To  constitute  a  maim  by  biting  off  an  ear,  it  is  not  neces- 
sary that  the  whole  ear  shall  be  bitten  off";  it  is  sufficient  if  a 
part  only  is  taken  off,  provided  it  be  enough  to  alter  and 
impair  the  natural  personal  appearance,  and,  to  ordinary  obser- 
vation, to  render  the  person  less  comely.     Ibid. 

6.  In  an  indictment  under  the  statute  for  maiming  by  biting 
off  an  ear,  it  is  not  necessary  to  state  whether  it  was  the  right 
or  left  ear.     State  v.  Green,  7  Ired.,  39. 

See  (Indictment— In  wha?t  cases  an  indictment  will  lie,  28.) 
(Indictment — Form  and  matters  relating  thereto,  77.)  (Iijdict- 
inent— Of  the  trial,  verdict  and  judgment,  8-9.) 


MAINTENANCE  AND  CHAMPEETY,  ETC.         901 


MAINTENANCE  AND   CHAMPERTY. 

1.  Where  one  purchased  land,  promising  hj  a  written  instru- 
ment to  pay  therefor  fifty  dollars,  if  the  seller  would  take  that 
sum  before  there  should  be  a  decision  as  to  the  title  of  the  land, 
but  agreeing-  to  pay  one  hundred  dollars  if  the  seller  would  wait 
until  lie  could  get  a  decision  that  the  title  Avas  good,  it  icas  held 
that  the  contract  was  not  tainted  with  maintenance.  Nichols  v. 
Bimtiiiij^  3  Hawks.  8{j. 

See  (Bonds — Of  the  consideration,  11.) 


MALICIOUS  MISCHIEF. 

1.  An  indictment  for  malicious  mischief  will  not  lie  where 
the  defendant  took  another's  mare  from  his  corn  field,  in  which  she 
was  damaging  his  growing  corn,  to  a  secret  part  of  the  county 
where  he  inflicted  the  wound,  to  prevent  a  repetition  of  the  dana- 
age;  for  malicious  mischief  is  confined  to  those  cases  where  the 
act  is  done  in  a  spirit  of  wanton  malignity,  and  does  not  extend  to 
those  where  the  act  is  prompted  by  the  sudden  resentment  of  an 
injury,  which  is  calculated  to  excite  passion.  State  v.  Lan- 
dreth,  2  Car.  L.  K.,  246,  (223.) 

2.  An  indictment  will  be  sustained  at  common  law  for  "un- 
lawfully, wickedly,  maliciously  and  mischieyously "  setting  fire 
to,  burning  and  consuming  one  hundred  barrels  of  tar,  belong- 
ing to  the  prosecutor.     State  v.  Simpso7i,  2  Hawks,  4C0. 

3.  xVn  indictment  for  malicious  mischief  may  conclude  at  com- 
mon law,  and  in  such  indictment  it  is  not  necessary  to  charge 
malice  against  the  owner  of  the  property  injureil.  State  y. 
Scott,  2  Dev.  and  Bat.,  35. 

4.  jMalicious  mischief  consists  in  the  wilful  destruction  of  per- 
sonal property,  from  actual  ill-will,  or  resentment,  towards  its 
owner  or  possessor.     State  v.  Rolnmon,  3  Dey.  and  Bat.,  130. 

5.  An  indictment  for  malicious  mischief  will  only  lie  for  the 
malicious  destruction  of  personal  property.  Growing  corn,  ex- 
cept in  a  few  cases,  is  regarded  as  a  part  of  the  realty;  there- 
fore an  indictment,  for  "  unlawfully,  wickedly  and  maliciously  " 
cutting  and  destroying  a  quantity  of  standing  Indian  corn,  can- 
not be  supported.     State  v.  Helms,  5  Ired.,  364. 

6.  An  indictment  for  malicious  mischief  must  either  expressly 
charge  malice  against  the  owner,  or  fully  otherwise  describe  the 
offence.  Setting  forth  in  the  indictment  that  the  act  was  done 
"feloniously,  wilfully  and  maliciously,"  without  averring  that  it 
was  done  "mischievously,"  or  with  malice  against  the  owner,  is 
not  sufficient     Statev.  Jackson,  12  Ired,,  32y. 


902  MALICIOUS  MISCHIEF,  ETC. 

7.  A  man  lias  a  property  in  a  dog,  so  that  an  indictment  for  ■ 
malicious  mischief  in  killing  one  will  lie.  State  v.  Latham,  13 
Ired.,  33. 

8.  To  support  an  indictment  for  malicious  mischief  in  killing 
a  dog,  it  must  be  shown  that  the  killing  was  from  malice  against 
the  owner;  it  not  being  sufficient  that  it  was  the  result  of  pas- 
sion excited  against  tlie  animal,  by  an  injury  he  had  done  to  the 
defendant's  property.     Ibid. 


MALICIOUS  PROSECUTION. 

See  (Action  on  the  case — ^JNIalicious  prosecution.)     (Evidence 
-In  cases  of  malicious  prosecution  and  slander.) 


MANDAMUS  AND  QUO  WARRANTO; 

1.  Under  the  act  in  the  Revised  Statutes  "  concerning  writs 
of  qtio  ivarranto  and  mandamus,''  the  defendant,  though  judg- 
ment is  given  for  him,  cannot  recover  his  costs  against  the  rela- 
tor, where  the  public  only  is  interested;  for  the  act,  though  gen- 
eral in  its  terms,  nmst  be  confined  to  those  cases  only  where  the 
relator  claims  some  oflice  or  franchise,  and  has  therefore  a  per- 
sonal interest  in  the  suit.  State  v.  King,  1  Ired.,  22.  (See  Rev. 
Code,  ch,.  95,^  sees.  2  and  5.) 

2.  An  adjudication  of  the  county  court,  that  a  particular  per- 
son has  been  duly  elected  sheriff  of  the  county,  and  that  he  ha& 
the  necessary  freehold  qualification,  is  not  a  judgment  in  rem, 
binding  upon  all  the  Avorld,  but  can  at  most  conclude  the  par- 
ties contesting  the  election,  and  cannot,  therefore,  operate  as  an 
estoppel  to  an  information  in  the  nature  of  a  quo  warranto,  filed 
by  the  proper  officer  of  the  State  against  the  sheriff,  alleging  the 
want  of  such  freehold  qualification..     State  v.  Hardie,  1  Ired.,  42. 

3.  An  information  in  the  nature  of  a  quo  warranto  brought  to 
try  the  right  to  an  office  or  franchise,  though  in  form  a  criminal 
proceeding,  is  in  the  nature  of  a  civil  remedy,  and  is  not  there- 
fore within  the  meaning  of  tli.e  8th  section  of  the  bill  of  rights, 
which  declares  that  "  no  freeman  shall  be  put  to  answer  any- 
criminal  charge  but  by  in.dictm.cnt,.  presentmeiit  ox  im;peaplir- 
meut."     IhkL 


:mandamus  axd  quo  warkanto.         903 

4.  The  act  in  the  Revised  Statutes,  "concerningwritsof  (/'?o  war- 
raido  and  luaiidamus"  is  nc^t  confined  to  contests  between  differ- 
ent claimants  to  offices  and  franchises;  but  is  intended  to  regu- 
late the  mode  by  whicli  all  usuipations  of  offices  and  franchises 
may  be  examined  and  determined  in  courts  of  justice.  Hence, 
an  information  in  the  nature  of  a  cjuo  icarranto  maj,  with  It^ave 
of  the  court,  be  filed  by  the  attorney  general,  or  solicitors  for  the 
State,  in  their  respective  circuits,- against  a  sheriff,  to  enquire  by 
what  right  he  holds  his  office,  and  whether  any  person  should 
be  named  relator  or  iiot  in  such  information,  seems  to^  be  imma- 
terial, as  the  information  is  tliat  of  the  attorn-ey  general  or  so- 
licitor of  the  State,  and  not  of  the  relator.  Iliid.  (See  Rbv.  Code, 
ch.  95.) 

5.  Whether  its  appearing  affirmatively  that  an  information 
was  filed  with  the  leave  of  the  court  be  necessary  or  not,  it  will 
be  sufficient  if  the  proceedings  of  record  show  that  it  has  the 
sanction  of  the  court.     Ibid. 

(i.  It  is  no  objection  to  an  information  that  tlie  full  title  of  t!ie 
'' solicitor  for  the  State"  is  not  given,  and  that  the  term  "so- 
licitor "  only  is  used.  But  if  it  Nv^ere  an  objection,  it  would  be 
formal  only,  and  could  not  av^ail  the  defenda.nt  on  a  demurrer  to 
his  plea.     Ibid. 

7.  The  63d  section  of  the  31st  chapter  of  the  Revised  Statutes, 
which  prescribes  the  time  when  writs  and  other  civil  process 
shall  issue  and  be  made  returnable,  is  inapplicable  to,  and  was 
not  intended  to  have  an}-  operation  upon,  the  prerogative  writ 
of  mandamus.  Such  a  writ  can  ordy  issue  when  a  necessity  for 
it  is  shown;  and  from  its  very  nature  it  should  issue,  be  made 
returnable  and  be  returned,  according  as  the  necessity  that  calls 
for  it  may  require.  Stcde  v.  Jonts,  1  Ired.,  129.  (See  Rev.  Code, 
ch.  31,  sec.  50.) 

'S.  No  general  rules  of  practice  in  relation  to  the  issuing  and 
return  of  writs  of  innndainus  have  yet  been  prescriljcd  in  tliis 
State,  and  it  is,  therefore,  in  each  case  the  province  of  the  court, 
by  which  the  writ  niay  be  a\\'arded,  to  fix  the  day  on  which  it 
should  be  made  returnable.     Ihid. 

9.  Tlie  case  set  forth  in  the  writ  of  mandanuis  mnst  sJioiv  that 
there  is  no  other  specific  legal  remedy;  because  the  court  will 
not,  ordinarily  at  least,  interfere  by  mandamus  where  there  is 
another  specific  legal  remedy.  But  it  is  not  proper,  much  less 
necessary,  that  the  writ  should  declare  that  there  is  no  other 
remed}'  for  the  mischief  which  it  connnands  to  be  removed.  Ihid. 

10.  The  writ  of  mandainus  should  be  directed  to  all  the  per- 
sons, wdiose  duty  it  is  to  perform  the  act  recjuired,  though  some 
of  them  may  be  applicants  for  the  writ.  And  where  three  of 
seven  commissioners  filed  a  petition  for  a  mandamu'i  to  compel 
the  other  four  in  concurrence  with  them  to  perform  a  specific 
duty,  and  an  alternative  mandamus  was  issued,  directed  to  the 


904  MANDAMUS  AND    QUO  WARRANTO 

four  only,  wliicli  was  returned  with  an  admission  of  service  by 
the  three  petioners,  and  an  expression  of  their  readiness  to  per- 
form the  duty,  whereupon  a  peremptory  ;)icwH/«)/i?/.s  was  ordered, 
it  ivas  held  that  the  order  lor  the  peremptory  mandamus  was 
against  all,  and  that  the  proceedings  were  sutHcient.     Ibid. 

11.  When  an  alternative  mandamus  is  issued,  and  no  answer, 
or  return  of  the  cause  is  made,  the  court  may  be  moved  for  an, 
attachment  against  the  persons  to  whom  it  has  been  directed; 
and  in  such  a  motion  the  attachment  ought  to  be  refused,  un- 
less there  has  been  a  personal  service  of  the  writ,  or  such  a  ser- 
vice as  the  court,  by  special  order  under  the  circumstances  of 
the  case,  may  direct.  But  the  court,  instead  of  proceeding  by 
attachment  for  contempt  because  cause  is  not  shown,  may  di- 
rect a  peremptory  mandamus  to  issue,  simply  regarding  the  al- 
ternative mandamus  as  in  the  nature  of  a  rule  to  show  cause  why 
an  absolute  mccndumiis  should  not  issue;  and  to  justify  this  course, 
personal  service  of  the  rule,  or  the  writ  in  nature  of  a  rule,  is  not 
necessary;  but  service  by  leaving  a  copy  at  the  dwelling  house 
is  sufficient,  if  tlie  court  deem  it  reasonable ;  and  of  this  the  court 
which  issues  the  rule,  or  writ  in  nature  of  a  rule,  is  the  exclusive 
judge,  and  its  judgment  upon  that  matter  cannot  be  revised  up- 
on appeal.     Ibid. 

12.  Though  a  peremptory  mandamus  implies  that  the  party 
has  been  fully  heard,  and,  therefore,  that  he  can  allege  no  rea- 
son for  not  obeying  it,  yet  an  exception  is  of  necessity  implied, 
that  such  obedience  is  not  forbidden  by  a  new  law  passed  after 
the  writ  was  awarded.     State  v.  Jones,  1  Ired.,  414. 

13.  A  writ  of  7uaJ?<iam?;.§  will  not  be  gTanted  to  a  relator  for 
his  relief,  except  where  he  has  a  .specific  le(/al  right,  and  has  no 
other  specific  remedy  adequate  to  enforce  it.  State  v.  Justices  of 
Moore  County,  2  Ired.,  430. 

14.  The  justices  of  the  county  court,  having*  a  discretion  to  a 
certain  extent  in  granting  licenses  to  retail,  a  mandamus  will  not 
lie  to  compel  them  to  grant  a  license  to  any  particular  person, 
though  he  may  have  been  impro]>erly  refused  a  license.  Attor- 
ney General  v.  J> notices  of  Guilford,  5  Ired.,  315. 

15.  But  if  justices,  fully  informed  tliat  they  have  discretion  to 
regulate  a  branch  of  the  pu1)lic  police  (as  in  tlie  case  of  granting 
licenses  to  retailers),  perversely  abuse  their  discretion,  by  obsti- 
nately resolving  not  to  exercise  it  at  al],  or  by  exercising  it  in  a 
way  purposely  to  defeat  the  legislative  intention,  or  to  oj^press 
an  individual :  such  an  intentional,  and  therefore  corrupt,  viola- 
tion of  duty  and  law  must  be  answered  for  on  an  indictment. 
Ibid. 

16.  x\n  information  filed  by  the  attorney -general  for  the  pur- 
pose of  having  the  charter  of  an  incorporation  declared  to  be  for- 
feited, though  it  need  not  be  expressed  in  technical  language, 
must   set  out  the   substance  of  a  good   cause   of  forfeiture  in 


:maxdamus  and  quo  waeeanto         905 

its  essential  circumstances  of  time,  place  and  overt  acts.  Attor- 
ney Goi'-'ral  V.  Petersburg  and  RoanoJce  Railroad  Company,  6 
Ired.,  456. 

17.  When  the  legislature  required  "the  grounds"  to  be  set 
forth,  on  ^vhich  the" forfeiture  is  alleged  to  be  inciu-red,  nothing 
less  could  be  meant  than  that  the  information,  like  an  indict- 
ment or  declaration,  should  state  with  certainty  to  a  common 
intent  those  facts  and  circumstances,  which  constitute  the  of- 
fence in  its  substance,  whether  of  misfeasance  or  nonfeasance :  so 
that,  on  its  face,  if  true,  it  may  be  seen  that  there  is  a  specific 
ground  in  fact,  and  not  by  conjectural  inference,  on  which  a  for- 
feiture ought  to  be  adjudged.     Ihid. 

18.  When  a  charter  expressly  imposes  a  duty,  which  the  cor- 
poration is  to  perform,  not  merely  to  the  citizen,  but  towards  the 
sovereign  itself,  although  it  may  not  declare  that  non-perform- 
ance shall  work  a  forfeiture,  yet  it  must  be  taken  to  have  been 
required  by  the  State  as  a  material  stipulation,  for  the  non-per- 
formance of  which  by  the  corporation  the  State  may  put  an  end 
to  the  charter.  But  if  the  sovereign  (which  with  us  is  the  leg- 
islature) with  the  distinct  knowledge  of  a  breach  of  duty  by  the 
corporation,  a  knowledge  declared  by  the  legislature,  or  so  clear- 
ly to  be  inferred  from  its  own  archives  that  the  contrary  cannot 
be  true,  thinks  proper  by  an  act  to  remit  the  penalty,  or  to  con- 
tinue the  corporate  existence,  or  to  deal  with  the  corporation  as 
lawfully  and  rightfully  existing,  notwithstanding  such  known 
default,  such  conduct  must  be  taken,  as  in  other  cases  of  breach- 
es of  condition,  to  be  intended  as  a  declaration,  that  the  forfeit- 
ure is  not  insisted  on,  and,  therefore,  as  a  Avaiver  of  previous  de- 
faults.    Ibid. 

19.  Where,  by  act  of  assembly,  certain  persons  were  appointed 
commissioners  "to  select  and  determine  upon  a  site  for  a  per- 
manent seat  of  justice  for  S.  county,  who  shall  locate  the  same 
as  near  the  centre  of  the  said  county  as  a  suitable  location  can 
be  obtained,  taking  into  consideration,  both  the  extent  of  the 
tei-ritory  and  population,"  and  the  commissioners  made  selection, 
upon  an  application  for  a  prohibition  and  mandaians  on  the  gen- 
eral ground  than  the  site  was  not  in  the  centre  of  the  county, 
it  teas  held  that  though,  had  the  commissioners  neglected  to  dis- 
(>-harge  the  duty  at  all,  the  court  might  by  mandanms  have 
enforced  its  performance,  yet,  as  the  commissioners  had  acted  and 
exercised  their  judgment  in  the  selection,  and  the  trust  evidently 
requiring  and  the  act  conferring  a  discretion,  the  court  could  not 
interfere  by  mandamus  to  control  the  exercise  of  that  discretion. 
State  V.  Bonner,  Busb.,  257. 

20.  On  a  petition  for  a  m,andamiis,  the  writ  of  alternative 
mandamus  h  always  the  first  jiroce.ss,  as  distinguished  from  a  rule. 
State  V.  Justices  (if  Anson,  Busb.,  302. 

21.  The  return  of  the  delendants  to  an  alternative  mandamus 


906  MANDAIMUS  AND  QUO  WARRANTO. 

will  be  taken  as  true,  unless  its  falsity  is  alleged  and  shown  hy 
the  petitioner.     Tucker  v.  Justices  of  Iredell^  1  Jones,  451. 

22.  Where  the  return  of  the  defendants  admits  a  material 
allegation  of  the  petitioner,  but  avers  new  matter  in  avoidance, 
the  issue,  to  avail  the  petitioner  in  falsifying  the  return,  should 
be  taken  on  the  new  matter,  and  not  on  the  admitted  fact ;  for  as 
to  that,  the  issue  will  be  treated  as  immaterial.     Ibid. 

23.  Where  a  mandamus  is  })rayed  for  to  compel  the  justices  of 
a  county  to  pay  tor  the  building  of  a  bridge,  and  a  verdict  is 
rendered  by  a  jury,  upon  an  issue  submitted  to  them,  that  the 
bridge  was  not  built  according  to  the  contract,  the  petitioner 
has  no  right  to  recover,  in  this  proceeding,  the  value  of  the 
bridge,  during  the  time  it  had  been  used  by  the  public.     Ibid. 

24.  A  contractor  to  build  a  court  house,  who  has  not  done  the 
work  according  to  the  contract,  is  not  entitled  to  a  mandamus  to 
compel  the  justices  of  the  county  employing  him,  to  pay  the 
sum  agreed  on;  especially  after  they  had  already  paid  him 
more  than  his  work  and  materials  were  worth.  Dumeron  v. 
Justices  of  Ckaveland,  1  Jones,  484. 

25.  The  defense  to  an  information  in  the  nature  of  a  quo  tvar- 
ranto  ought  to  be  made  by  way  of  a  plea,  and  not  that  of  an 
answer.     Burton  v.  Palton,  2  Jones  124. 

2().  An  information  in  the  natiare  of  a  quo  ivarranto  may  be 
filed  against  public  ofhcers  after  the  expii-ation  of  their  office, 
when  their  conviction  may  be  necessary  to  invalidate  their  acts, 
which  are  of  public  concern.  Therefore,  it  was  held  that  such  a 
proceeding  against  commissioners,  appointed  by  an  act  of  assem- 
bly to  purchase  a  town  site  and  to  lay  off  and  sell  lots,  is  not  too 
late  after  they  have  professed  to  act,  amd  have  professed  to  per- 
form every  particular  duty  prescribed  by  the  act.     Ibid. 

27.  Persons,  who  have  been  regarded  as  public  officers  for  a 
greater  part  of  the  time  during  which  the  office  existed,  and 
A\diose  acts  are  recogized  by  other  public  functionaries,  must  be 
taken  to  be  officers  de  facto,  and  their  acts  will  be  regarded  as 
valid,  unless  declared  otherwise  by  some  competent  tribunal  in 
a  proceeding  directly  against  them.     Ibid. 

28.  When  a  mandamus  issues  to  the  justices  of  a  county,  com- 
manding them  to  do  a  thing  in  their  public  capacity,  their  re- 
turn to  it  must  be  made  by  them  as  a  body.  McCoy  v.  Justices 
of  Harnett,  4  Jones.  180. 

29.  Where  an  alterative  mandarins  was  directed  to  the  justi- 
ces of  a  county,  and  a  part  of  them  made  a  return  of  one  im- 
port, and  another  part  made  a  return  of  a  difierent  import,  no 
meeting  of  the  whole  body  having  been  held  to  ascertain  the 
voice  of  the  majority,  it  was  held  that  there  was  no  legal  return, 
and  that  all  the  proceedings  in  the  case,  predicated  on  a  return^ 
were  erroneous.     Ibid. 

30.  A  petition  for  a  mandamus^  alleging  a  contract  between 


MAKDAMUS  AND  QUO  WAKKANTO.  907 

the  petitioner  and  the  justices  of  a  county,  by  -which  he  was  to 
be  paid  a  certain  sum  for  building  a  court  house,  and  a  certain 
other  sum  for  building  a  jail,  "  in  monthly  instalments  for  lum- 
ber and  work,"  and  praying  for  a  writ  of  niandanuis  to  compel 
the  payment  of  what  is  due,"  without  averring  that  any  partic- 
ular sum  is  due,  is  defective.  And  so  is^a  Avrit  of  alternative  man- 
damus, commanding  the  defendants  to  provide  the  means,  and 
pay  "  whatever  sum  is  now  due,  "  without  an  allegation  that  any 
particular  sum  is  due.  3IcCoy  v.  Justices  of  Harnett,  5  Jones, 
265. 

31.  Where  it  appears  from  a  contract  for  erecting  a  public 
building,  sought  to  be  enforced  by  a  mandamus,  that  the  work 
was  to  be  done  under  the  direction  of  a  superintendent,  who 
was  to  make  monthly  estimates  of  Avork  done  and  materials  fur- 
nished, and  to  certify  the  same,  and  that  the  contractor  was  to 
be  paid  monthly  on  the  production  of  such  certificates,  a  peti- 
tion for  a  mandamus,  and  a  writ  of  mandamus  commanding  pay- 
ment to  be  made,  without  averring  the  existence  of  such  certi- 
ficates, or  accounting  for  their  non-production,  is  defective. 
Ibid. 

32.  Where  a  petition  for  a  mandamus,  and  the  writ  issued  in 
pursuance  thereof,  are  defective  in  substance,  they  will  be  quash- 
ed  on  motion,  at  the  cost  of  the  petitioners.     Ihid. 

33.  ^^'here  to  a  writ  of  alternative  mandamus  the  defendant 
exhibited  a  bill  in  equity,  alleging  an  equitable  defence  to  the 
demands  of  the  plaintiff,  and  praying  for  an  injunction  to  re- 
strain him  from  prosecuting  the  writ,  and  asked  that  the  bill 
might  be  received  as  "  a  return  "  to  the  writ,  it  loas  held  that  it 
was  proper  in  the  court  to  refuse  the  injunction,  and  to  order 
the  defendant  to  make  a  return  to  the  writ  of  mandamus. 
Neuse  Biver  Nafiqation  Com'pavy  v.  Coiiunissioners  of  Ncwbern, 
6  Jones,  204. 

34.  The  proper  order  in  a  mandamus,  seeking  payment  from 
the  justices  of  the  county  court  for  work  done  for  the  county, 
under  a  contract  which  they  were  empowei-ed  to  make, 
and  which  was  made  by  commissioners  appointed  by  them,  is 
that  they  i^ay,  and  not  that  they  be  required  to  lay  taxes,  &c. 
McCoy  V.  J/i-stires  of  Harnett,  6  Jones,  488. 

35.  Where  one  of  the  stipulations  of  a  contract  for  making  a 
public  building  was,  that  the  work  was  to  be  done  under  the 
direction  of  a  superintendent,  and  payments  were  to  be  made 
monthly  on  the  production  of  his  estimates  and  certificates;  it 
was  held  unnecessary,  after  the  work  was  completed,  approved 
and  accepted,  to  do  more  than  set  forth  in  a  petition  for  a  7nan- 
dauvis,  that  the  worlc  had  been  done  under  such  superintendent, 
and  his  estimates,  etc.,  had  been  presented,  but  were  disregarded 
by  the  justices  appointing  him,  and  payment  refused  on  other 
grounds.     lUd. 


908  MANDAMUS  AND  QUO  WAEPtANTO. 

36.  The  superior  court  of  any  county  may  issue  a  writ  of 
mandamus  to  the  Governor  of  the  State,  commanding  him  to  do 
an  act  which  is  merely  ministerial.      Cotton  v.  JElIis,  7  Jones,  545 

37.  Where  an  act  of  assembly  establishing  a  new  county  ap- 
pointed certain  persons  as  commissioners  to  ascertain  a  site  and 
purchase  a  tract  of  land  for  the  county  seat,  and  required  the 
justices  of  the  county  thereupon  to  appoint  commissioners  to  lay 
off  lots  in  the  town  and  sell  them,  it  was  held  not  to  be  a  suffi- 
cient return  to  an  alternative  martdamus  to  the  justices,  for  them 
to  allege  that  the  locating  commissioners  had  been  prompted  by 
improper  motives  in  the  discharge  of  their  duties.  Lander  v. 
Justices  of  Ashe,  8  Jones,  174. 

38.  Where  the  locating  commissioners,  under  the  act  above 
referred  to,  were  directed  to  purchase  a  tract  of  land,  take  a  deed 
for  it  and  file  it  in  the  office  of  the  clerk  of  the  county  court, 
whereupon  the  justices  of  the  county  were  to  do  certain  acts,  it 
was  held  that  the  justices  were  not  entitled  to  any  other  notice 
that  the  locating  commissioners  had  acted,  than  the  filing  of 
such  deed,  especially,  as  the  act  did  not  expressly  direct  that 
any  notice  should  be  given  them.     Ibid. 

39.  The  proper  Avay  for  the  justices  of  a  county  to  make  a 
return  to  a  mandamus  is  for  them  to  convene,  and,  a  majority 
being  present,  to  agree  upon  the  facts  they  mean  to  rely  upon 
by  way  of  defence,  and  then  appoint  some  one  of  their  body  to 
make  affidavit,  and  to  do  all  the  other  things  required  by  the 
proceeding.     Ibid. 

40.  A  contract  fbr  erecting  a  public  building,  made  with  a 
committee  appointed  by  the  justices  of  a  county,  if  performed 
according  to  its  terms  by  the  contract.or,  will  bind  the  justices, 
and  they  may  be  compelled,  by  a  peremptory  mandamus,  to  pay 
the  stipulated  price,  although  early  in  the  progress  of  the  work 
they  had  dismissed  the  committee,  and  endeavored  to  rescind 
the  order  appointing  it,  and  had  given  notice  to  the  contractor 
not  to  proceed.     McCoy  v.  Justices  of  Harnett,  8  Jones,  272. 

41.  Where  a  person  contracting  to  erect  a  public  building, 
after  the  dismission  of  the  committee  through  whom  the  con- 
tract was  made,  and  a  rescission  of  the  order  appointing  it,  and 
a  notice  by  the  justices  not  to  go  on  with  the  building,  still  con- 
tinued to  act  under  such  committee,  and  by  its  directions  made 
material  departures  from  the  specifications  in  the  contract,  it  was 
held  that,  though  he  completed  the  building  within  the  specified 
time,  he  was  not  entitled  to  a  peremptory  mandawMS  to  compel 
the  payment  of  the  price.     Ihid. 

42.  An  information  in  the  nature  of  a  writ  of  quo  warranto 
against  a  corporation  for  the  purpose  of  having  its  privileges  de- 
clared forfeited,  because  of  neglect  and  abuse  in  the  exercise  of 
them,  must  be  filed  in  the  name  of  the  attorney  general  of  the 


MANDAMUS  AND  QUO  WAERANTO,  ETC.        909 

State,  and  caiuiot  be  iiistitiitecl  in  the  name  of  one  of  the  soHcitors. 
Houston  r.  Neiise  River  Navigation  Com'jiany,  8  Jones,  47(). 

See  (Clerks  and  Clerks  and  ^Masters — Of  their  election  or  ap- 
pointment, 3-4.)  Corporations — Of  corporations  generally,  1.) 
(Costs — ^^^hen  neither  party  recovers  costs,  7-11.)  (Costs — In 
civil  proceedings,  when  the  plaintiff  pays  costs,  11.)  (Forcible 
Entry  and  Detainer,  16.) 


^lANSLAUGIiTEPu 

See  (Homicide.) 


MARRIAGE. 

See  (Assumpsit — Defence  to  the  action.)   (Husband  and  Wife 
-^Marriage.)     (Indictment — When  an  indictment  will  lie,  59.) 


MASTER  AND  SERVANT. 

1.  A  master  is  not  liable  for  an  actual  trespass,  which  his  ser- 
vant may  commit  without  his  previous  command  or  subsequent 
assent ;  but  he  is  liable  in  an  action  on  the  case  for  the  tortious 
acts,  negligence  or  unskilfuUness  of  a  servant,  acting  in  the  pros- 
ecution of  his  service,  or  in  the  exercise  of  the  authority  he  has 
given  him,  though  not  under  his  innnediate  direction.  Harris 
V.  Mabry,  1  Ired.,  240. 

2.  Where  the  case  was  for  wrougfldly  and  negligently  permit- 
ting the  plaintiff's  slave  to  pass  in  the  defendant's  stage  coach, 
without  the  permission  of  the  plaintiff,  whereby  the  slave 
escaped  and  was  lost  for  some  time  to  the  plaintiff",  and  she  was 
jmt  to  great  expense,  &c.,  and  where  the  evidence  was  that  the 
defendant's  drivers  and  stage  agents  were  guilty  of  gross  negligence, 
in  taking  the  slave  beyond  a  certain  town,  where  her  pretended 
pass  was  at  an  end,  and  permitting  her  to  travel  in  defendant's 
stages  to  another  state,  whereby  the  slave  was  lost  to  the  plaintiff  it 


910         MASTER  AND   SEEVANT^MERGER,  ETC. 

was  held  that  the  defendant  was  liable  for  the  injury,  and  that 
the  plaintiff  was  entitled  to  recover  all  such  damages  as  were 
the  consequence  of  the  acts  of  the  defendant's  servants,  while  in 
his  service.     Ibid. 

3.  The  owner  of  a  slave,  who  is  hired  out,  is  not  answerable 
to  a  physician  for  medicine  or  medical  services,  rendered  to  the 
slave  at  the  request  of  the  hirer,  and  without  the  request  or 
knowledge  of  the  owner.     Haywood  v.  Long,  5  Ired.,  438. 

4.  What  may  be  the  right  or  liabilities,  in  such  a  case,  as 
between  the  owner  and  the  hirer,  quaere.     Ibid. 

5.  The  hirer  of  a  slave,  and  not  the  general  owner,  is  liable  in 
an  action  for  medicine  and  medical  services  rendered  the  slave 
while  the  term  of  hiring  continued,  the  services  and  medicine 
not  being  rendered  at  the  request  of  the  owner,  but  at  the  request 
of  the  hirer;  and  a  particular  custom  in  a  county,  that  the  gen- 
eral owner  shall  pay  these  expenses,  does  not  vary  the  law. 
Jones  V.  Allen,  5  Ired.,  473. 

fi.  A  master  is  not  liable  for  the  willful  trespass  of  his  servant. 
Wesson  v.  Seaboard  and  Roanoke  Railroad  Company,  4  Jones,  379. 

7.  A  master  is  not  liable  in  damages  to  one  servant  for  inju- 
ries caused  by  the  negligence  of  a  fellow-servant,  engaged  in 
the  same  employment^  provided  the  master  has  taken  reasonable 
care  to  associate  with  the  .person  injured,  servants  of  ordinary 
skill  and  care ;  and  if  the  person  injured  be  a  slave,  his  owner 
can  stand  in  no  better  situation  than  a  free  servant.  Ponton  v, 
Wilmingion  and  WeUon  Railroad  Comjjany,  6  Jones,  245. 

See  (Slaves- — Of  a  master's  liability  for  the  contracts,  or  acts, 
of  his  slaves.) 


MERGER. 

1.  Estates  do  not  merge  wheu  they  are  not  ejusdem  generis; 
therefore,  where  a  father  had  a  life  estate  in  a  slave,  remainder 
to  all  his  daughters,  a  gift  by  him  of  the  slave  to  the  husband 
of  one  of  the  daughters  will  not  merge  the  life  estate  in  the 
remainder,  because  that  remainder  is  in  all  the  daughters.  Moye 
V.  — ,  2  Hay.,  186,  (387.) 


MILITIA. 

1.  Where  a  man,  who  is  liable  to  militia  duty,  is  arrested  on 
a  civil  process  while  attending  a  militia  muster,  in  violation 


MILITIA— .AIILLS— I. 


911 


•of  the  act  of  assembly,  he  may  plead  the  same  in  abatement. 
Murphy  V.  3IcCnmbs,\l  Ired.,  274. 

2.  The  only  effect  of  the  act  of  1858,  ch.  22,  repealing  so  much 
of  sec.  9,  ch.  70  of  the  Eev.  Code,  as  relates  to  the  appointment 
and  salary  of  the  adjutant  general,  is  to  take  from  the  governor 
the  power  to  fill  future  vacancies  in  that  office,  and  to  revest  it 
in  the  legislature,  and  also  to  leave  the  salary  to  be  paid  semi- 
annually, as  provided  by  the  Rev.  Code,  ch.  102,  sec.  2.  Cotton 
V.  EUis^  7  Jones,  5-A5. 


MILLS. 


t.  Action  at  comracm  law  for  damages 

caused  by  a  mill. 
tl.  Proceedings  for  damages  by  petition 
under  the  act  of  1809. 
ill.  Proceedings  to  condemn  land  for  the 
erection  of  a  mill. 


IV.  Liability  of  mill  owners  for  bridges 
attached  to  their  dams, 
V.  Indictment  against  mill  owners  for 
keeping  false  toll  dishes. 


I.   ACTION  AT  COMMON  LAW  FOR  DAMAGES  CAUSED  BY  A  MILL. 

1.  Case  for  nuisance  in  erecting  a  mill  Avill  lie  for  every  fresh 
continuance  of  the  dam  and  pond  after  action  brought ;  though 
heavy  damages  are  not  usual  in  the  first  action,  they  may  be  in- 
creased in  a  second,  to  compel  an  abatement  of  tlie  nuisance, 

■ V.  Beherrij,  1  Hay.,  248,  (287.)     S.  P.,  Caruthcrsv.  Tilnian, 

Ibid,  501,  (5713.)  (For  the  statutory  remedy  by  petition.  See 
Kev,  Code,  ch.  71.) 

2.  A  license  to  overflow  a  man's  land  by  a  mill  pond  is  not 
good  if  verbally  given,  because  land  cannot  be  charged  by  any 
matter  of  less  solemnity  than  a  deed.     Ibid. 

3.  Where  a  second  action  isbrought  for  overflowing  plaintiff's 
land  by  a  mill,  the  damages  should  be  assessed  for  the  time  be- 
tween the  beginning  of  the  first  and  the  second  action ;  and  as 
the  action  may  be  repeated  for  every  continuance  of  the  nuisance, 
the  damages  should  be  light,     Bradley  v.  Amis,   2  Hay.,  399, 

(^01-)  ... 

4.  In  action  for  overflowing  the  plaintiff's  land,  lie  need  not 

prove  his  title,  though  it  be  set  forth  in  the  declaration,  for  pos- 
session alone  is  suffici-ent  to  support  this  action  against  a  wrongs 
doer.     Yearguin  v,  Johnston,  Tay.,  80,  (56,) 


912  MILLS— 11. 

II.       PROCEEDINGS  FOR    DAMAGES    BY    PETITION    UNDER    THE    ACT    OF  1809'. 

1.  LT^pon  an  appeal  from  the  county  court  in  the  case  of  a  pe- 
tition for  overflowing  land  by  the  erection  of  a  mill,  the  jury  in 
the  superior  court  must  meet  on  the  premises.  Andrews  v. 
Johnson,  1  Car.  L.  R.,  272,  (26.)  (Altered;  seeKev.  Code,  ch.  71, 
sec.  10.) 

2.  Whenever  any  person  has  sustained  an  injury  to  his  land 
by  the  erection  of  a  mill  by  another,  it  is  necessary  for  him  first 
to  file  a  petition  in  the  county  court,  according  to  the  act  of 
1809.  Mumford  v.  Terry,  2  Car.  L.  E.,  425,  (308.)  (See  Rev. 
Code,  ch.  71,  sec.  8  and  f'oUowing.) 

3.  In  a  petition  under  the  act  of  1809  to  recover  damages  for 
the  overflowing  of  the  plaintiff's  land,  if  the  defendant  die  it 
cannot  be  revived  by  a  sci.  fa.  against  the  heirs,  they  not  being 
liable  for  the  tort  of  their  ancestor.  Fellow  v.  Fulgham,  3  iMurph., 
254.  ( (Mfcre  how  this  is  affected  by  ch.  1,  sec.  1,  of  the  Rev. 
Code,  as  to  a1)atement  of  suits,  &c.) 

4.  Though  the  statute  has  given  a  new  remedy  by  petition  for 
injuries  from  the  overflowing  of  mill  ponds,  yet  the  nature  of 
the  injury  is  still  the  same.  It  is  a  tort  in  which  all,  or  any 
one  or  more,  are  liable  for  the  whole  injury,  and  it,  tlierefore, 
survives  against  tlie  survivors.      IVilson  v.   Myers,  4  Ilawks,  73. 

5.  A  conveyance  made  to  defeat,  hinder  or  delay  a  party  iiv- 
jured  by  the  erection  of  a  mill,  in  the  recovery  of  his  damages, 
is  fraudulent  and  void  as  to  such  party,  and  tlie  owner  or  pro- 
prietor of  the  mill,  notwithstandiiTg  such  conveyance,  continues 
still  liable  for  tlie  damages.  Pureell  v.  McCaUum,  1  Dev.  and 
Bat.,  221. 

6.  Upon  a  petition  filed  under  the  act  of  1809,  to  recover 
damages  caused  by  the  erection  of  a  mill,  damages  may  beUiS- 
sessed  for  an  injury  to  the  health  of  the  plaintiff  and  his  family, 
as  well  as  for  overflowing  his  land.  Gillet  v.  Jones,  1  Dev.  and 
Bat.,  339. 

7.  The  main  object  of  the  act  of  1809  was  to  restrain  a  malicious 
exercise  of  the  common  law  right  to  sue  for  a  nuisance,  in  frivo- 
lous cases.  It  does  not  create  any  new  right  to  damages,  nor 
abolish  any  pre-existing  one.  It  only  restricts  the  party,  to  a 
certain  extent,  to  a  particular  mode  of  recovery.  Its  policy 
requires  its  application  to  all  injuries,  of  whatever  character, 
arising  from  the  erection  of  a  mill.     Ihid. 

8.  Upon  a  verdict  under  the  act  of  1809,  where  the  annual 
damage  is  under  twenty  dollars,  the  proper  judgment  is  for  the 
whole  damages,  with  a  ces.w/  cxecntio  for  those  whicli  are  not 
payable;  and  this  judgment  should  be  peremptory,  and  not  con- 
ditional.    Ibkl. 

9.  If  the  damages  be  increased,  the  plaintiff  will  not  be 
estopped  by  the  judgment.     And  if  the  defendant  do  not  keep 


MILLS— 11.  913 

Tip  the  mill,  the  judgment  may  be  set  aside  for  the  residue  of 
the  damages  by  an  audita  querela.,  or  other  remedy  of  a  like 
nature.     Ihicl. 

10.  \Yhere  the  suit  upon  the  petition  ends  within  five  years, 
and  the  plaintiff  lias  a  verdict  for  more  than  twenty  dollars 
annual  damages,  he  may  elect  to  take  judgment  for  five  years 
damages,  or  only  for  the  years  passed.  And  if  he  elect  to  take 
a  judgment  for  five  years  annual  damages,  he  will  be  concluded 
for  that  period,  and  not  be  at  liberty  to  use  his  common  law 
remedy.     Ibid. 

11.  It  would  be  error  as  against  the  plaintiff,  and  perhaps  also 
as  against  the  defendant,  to  enter  a  judgment  for  the  five  years 
annual  damages,  where  it  exceeds  twenty  dollars,  without  the 
election  of  the  plaintiff",  appearing  upon  the  record,  iniless  the 
suit  has  been  protracted  beyond  the  five  years.     1  hid. 

12.  If,  at  the  time  of  the  trial  of  the  petition  for  damages,  five 
years  have  elapsed  since  the  filing  of  the  petition,  a  peremptory 
j'udgment  for  the  five  years  is  proper,  whether  such  annual  dam- 
age be  above  or  below  twenty  dollars.     I  bid. 

13.  One,  whose  land  is  overflowed  by  a  mill  pond,  has  a  right 
to  recover  for  the  damages  done  him,  notwithstanding  his  ances- 
tor consented  by  parol,  to  the  erection  of  the  dam ;  for  if  it  were 
the  grant  of  an  incorporeal  hereditament,  it  was  void  for  want 
of  a  deed;  if  a  mere  authority  or  license,  it  could  be  revoked,  and 
ceased  with  the  Hfe  of  the  grantor.  Bridges  v.  Purcell,  1  Dev.  and 
Bat.,  4!  1 2. 

14.  Where  the  erection  of  a  mill  on  a  stream  causes  the  water 
to  overflow'the  land  or  mill  of  a  proprietor  above  only  Avhenthe 
■stream  is  swollen,  that  will  not  excuse  the  party  from  damages 
altogether,  but  will  only  diminish  the  amount  of  them.  Fugh 
v.   jhiceler,  2  Dev.  and  iBat.,  50. 

J. 5.  If,  on  a  petition  for  damages  under  the  act  of  1809,  the 
jury  return  a  verdict  assessing  damages  for  more  than  one  year 
before  the  filing  of  the  petition,  the  court  may  correct  it  by 
giving  a  judgment  for  the  damages  of  only  one  year  previous. 
Ibid. 

IG.  In  assessing  damages  under  the  act,  the  jury  are  not  bound 
to  give  the  damages  at  an  average  for  the  five  years,  but  may 
•assess  difierent  sums  for  different  periods  during  that  time. 
Ibid  , 

17.  Where  a  petition  under  the  act  alleged  "that  by  the  erec- 
tion of  the  mill,  30  or  40  acres  of  his  land  were  overflowed,  and 
that  by  the  said  overflowing,  the  healthfulness  of  his  plantation, 
on  which  he  resides,  is  greatly  deteriorated,  the  overflowing  ex- 
tending to  within  300  yards  of  his  dwelling  house,"  the  plaintiff 
is  only  entitled  to  recover  damages  for  the  injury  done  by  inun- 
dating his  own  lands,  not  for  an  injury  to  the  health  of  his  fam- 
ily by  other  parts  of  the  mill  pond.  The  plaintiff  being  bound 
16* 


9U  MILLS— II. 

to  state  in  his  petition  in  what  respect  he  was  injured,  and  his 
proofs  cannot  go  beyond  his  allegations.  Bridgers  v.  Purcell,  1 
Ired.,  232. 

18.  On  an  appeal  from  the  judgment  on  the  verdict  of  a  jury 
in  the  county  court,  assessing  damages  for  the  erection  of  a  mill, 
the  superior  court  has  a  right  to  permit  the  sheriif  to  amend  his 
return  of  the  verdict  of  the  jury,  so  as  to  set  forth  Ihat  they  were 
sworn  on  the  premises.     Harper  v.  3IiUer,  4  Ired.,  34. 

19.  In  the  case  of  a  petition  for  damages  caused  by  the  erec- 
tion of  a  mill,  under  the  act,  when  there  has  been  a  verdict  and 
judgment  in  the  county  court,  the  superior  court  has  no  right  to 
dismiss  the  appeal  of  either  party  therefrom,  because  of  irregu- 
larity in  the  proceedings  previous  to-  the  verdict,  or  in  the  ver- 
dict itself;  but  the  trial  must  be  had  in  the  superior  court,  as 
prescribed  in  the  act.     Ibid.     (See  Rev.  Code,  ch.  71,  sec.  16.) 

20.  None  but  a  person  whose  land  is  overflowed  or  injured  by 
a  mill  pond,  can  have  the  remedy  to  recover  damages  by  peti- 
tion, for  the  injury  sustained  by  the  erection  of  the  mill,  as  pro- 
vided in  the  statute  concerning  mills.  Waddi/  v.  Johnson,  5 
Ired.,  333. 

21.  "When  the  land  is  so  overflowed  or  injured,  the  owner  may 
recover  full  compensation  for  all  the  injury  he  has  sustained 
thereby,  whether  it  be  more  or  less  direct,  whether  it  affect  his 
dominion  in  the  land  by  taking  away  its  use,  or  impair  the  value 
of  that  dominion  by  rendering  the  land  unfit,  or  less  fit,  for  a 
place  of  residence,  or  whether  the  injury,  reaching  beyond  its 
immediate  mischief,  extends  also  to  the  person,  or  the  personal 
property  of  the  petitioner.     Ibid. 

22.  One  who  complains  of  a  nuisance  to  his  land  by  the  erec- 
tion of  a  mill  dam.  is  not  obliged  to  wait  until  the  expiration  of 
a  year  before  he  files  his  petition  to  recover  damages  under  the 
act,  and  when  it  is  filed  within  a  year,  the  damages  are  neces- 
sarily confined  to  the  time  the  injury  has  existed.  Cochran  v. 
Wood,  6  Ired.,  194. 

23.  An  executor  has  a  right  to  a  remedy  by  petition,  under 
the  act,  to  recover  damages  for  the  overflowing  by  a  mill  pond 
of  his  testator's  land  in  the  life  time  of  such  testator.  Howcott  v. 
Warren,  7  Ired.,  20. 

24.  A  remedy  by  petition  under  the  act  to  recover  damages 
for  overflowing  land  by  a  mill  pond,  may  be  had  against  the  ex- 
ecutors of  the  person  who  committed  the  injury.  Howcott  v. 
CqffiehlJ  Ired.,  24. 

25.  Notwitlistanding  the  act  of  1844,  ch.  13,  relating  to  jury 
trials  in  the  counties  of  Henderson,  &c.,  a  person  cannot  main- 
tain an  action  on  the  case  for  the  overflowing  of  his  land  by  the 
erection  of  a  dam  for  a  puljlic  grist  mill  in  the  county  of  Hen- 
derson, without  having  first  proceeded  by  petition,  either  in  the 
county  or  superior  court  of  Henderson,  according  to  the  provis- 


MILLS— 11  915 

ions  of  the  act  of  1809.     King  v.  Shuford,  10  Ired.,  100.     S.  P. 
Pace  V.  Freeman,  10  Ired.,  103. 

26.  Possession  alone  will  maintain  an  action  on  the  case  at 
common  law  for  overflowing  one's  land,  and  therefore,  is  suffi- 
cient to  support  a  petition  under  the  act  in  relation  to  mills. 
Pace  V.  Freeman,  10  Ired.,  103. 

27.  The  owner  of  land  injured  by  the  erection  of  a  mill,  who 
has  proceeded  by  petition,  under  which  the  annual  damage  as- 
sessed was  as  high  as  twenty  dollars,  and  who  has  taken  judg- 
ment for  and  received  the  damage  for  the  whole  five  years,  can- 
not maintain  an  action  on  the  case,  brought  after  the  expiration 
of  the  five  years,  without  having  again  ascertained  the  annual 
damage  by  proceeding  under  a  second  petition.  Gilliam  v.  Gan- 
aday,  11  Ired.,  106. 

28.  In  a  proceeding  under  the  act,  to  recover  damages  for 
overflowing  land  by  a  mill  pond,  it  is  not  necessary  that  a  copy 
of  the  petition  should  be  served  on  the  defendant.  It  is  sufficient 
for  the  plaintiff  to  give  the  defendant  ten  days  notice  in  writing, 
of  his  intention  to  file  the  petition.     Gox  v.  Puis,  12  Ired.,  139. 

29.  In  a  proceeding  to  recover  damages  for  ponding  water  by 
a  mill  dam,  under  tlie  act,  the  verdict  of  the  jury  and  the  judg- 
ment of  the  court  thereon  are  conclusive  as  to  the  assessment  of 
damages,  up  to  the  time  when  such  judgment  was  rendered. 
Peaity  v.  Gonner,  12  Ired.,  341. 

30.  An  application  for  relief  from  damages,  assessed  for  a  pe- 
riod subsequent  to  the  time  of  the  judgment,  can  only  be  heard 
when  the  dam  is  taken  away  or  lowered.  The  washing  out  of 
the  channel,  and  other  causes  of  a  similar  kijid,  furnish  no  rea- 
son tor  abating  the  damages.     Ibid. 

31.  A  dam  erected  below  a  steam  mill,  not  for  the  purpose  of 
<lriving  the  machinery  of  the  mill,  but  for  the  purpose  of  float- 
ing timber  to  the  mill,  by  which  water  is  ponded  back  upon  the 
land  of  another,  does  not  come  within  the  meaning  of  the  act 
of  1809,  and  an  action  on  the  case  will  lie  at  once  for  the  injury. 
Bryan  v.  Purnett,  2  Jones,  305. 

32.  It  is  not  necessary  that  the  water  of  a  mill-pond  should 
actually  ovei'flow  the  land  of  a  person,  to  entitle  him  to  recover 
damages  under  the  act.  If  the  dam  throws  back  the  water  so 
as  to  iiijure  the  land  by  preventing  it  from  being  drained,  the 
owner  will  be  entitled  to  damages.  Johnston  v.  Poane,  3  Jones, 
523. 

33.  Upon  an  enquiry  as  to  the  damages  arising  from  the  pond- 
ing of  water  upon  land,  the  petitioner  has  a  right  to  have  the 
question  submitted  to  the  jury,  whether  the  overflowing  com- 
])lained  of  was,  during  the  time  alleged,  injurious;  and  any  for- 
mer benefits  the  land  may  have  received  from  such  overflowing, 
has  nothing  to  do  with  the  question.  Kimcl  v.  Kimel^  4  Jones, 
121, 


916  MILLS— II-III-IV. 

34.  If  water  be  ponded  back  upon  the  land  of  another  by  the 
erection  of  a  mill-dam,  he  is  entitled,  in  the  remedy  by  petition, 
to  recover,  at  least,  nominoi  damages,  whether  there  be  any  sub- 
stantial injury  or  not.      Wright  v.  Stotoe,  4  Jones,  516. 

35.  In  a  petition  for  damages  caused  by  the  erection  of  a  mill 
dam,  where  in  the  county  court  the  plaintifi"'s  right  to  relief  is 
denied  by  plea  or  answer,  the  proper  course  is  to  empannel  a 
jury  to  try  the  truth  of  the  allegations  made  in  bar  of  such 
right,  and  if  it  be  found  in  favor  of  the  plaintifi",  a  jury  must  then 
be  ordered  to  go  on  the  Y)remises  to  assess  the  damages,  but  in 
all  cases  where  there  is  an  appeal  to  the  superior  court,  tlip  facts 
are  to  be  ascertained  by  a  jury  at  bar,  but  in  that  court  the  alle- 
gations in  bar  of  relief  must  be  submitted  to  be  first  passed  upon 
by  the  jury,  before  they  proceed  to  ascertain  the  amount  of  dam- 
ages.    Jones  V.  Clarke,  7  Jones,  418. 

36.  In  a  petition  for  damages  caused  by  the  erection  of  a  mill 
dam,  the  fact  that  the  plaintiff  and  those  under  whom  he  claim- 
ed had  made  no  complaint  for  twelve  years,  is  neither  a  bar  to 
the  action,  nor  cause  for  the  mitigation  of  damages.  Griffin  v. 
Foster,  8  Jones,  337. 

See  (Evidence — Proceedings  in  other  suits,  when  and  how  far 
evidence,  37.) 

ni.       PROCEEDINGS  TO  CONDEMN  LAND  FOR  THE  ERECTION  OF  A  MILL. 

1.  In  condemning  an  acre  of  land  for  the  purpose  of  erecting' 
a  mill,  the  court  is  forbidden  to  confirm  a  rej^ort  of  commission- 
ers if  it  take  away  "houses,"  &c;  and  by  necessary  implication, 
the  commissioners  are  forbidden  to  include  them  in  their  survey. 
They  are,  therefore,  not  authorized  to  include  in  their  valuation 
any  houses  found  on  the  condemned  acre,  even  though  erected 
there  by  the  petitioner  bef  re  the  proceedings  were  commenced. 
The  valuation  must  be  confined  to  the  naked  land.  Burgess  v, 
Clark,  13  Ired.,  109.     (See  Rev.  Code,  ch.  71,  sec.  2.) 

See  (Costs — In  civil  proceedings,  when  plaintiff  pays  costs,  6.) 

IV.    LIABILITY  OP  MILL  OWNERS  FOR  BRIDGES    ATTACHED  TO    THEIR    DAMS, 

1.  The  penalty  imposed  by  the  act,  Eev.  Stat,  ch.  104,  sec, 
25,  on  the  owner  of  a  water  mill,  for  not  keeping  a  bridge  in  re- 
pair, only  applies  to  such  bridges  as  constitute  a  part  of  the  pub- 
lic road  whidi  runs  over  the  dam  itself,  but  not  to  a  bridge 
which  is  erected  over  a  mill  race  on  a  road  that  crosses  sucii 
race  near  the  mill,  but  does  not  run  over  the  dam.  Hall  v.  Mor- 
row, 2  Jones,  465.     (See  Rev.  Code,  ch.  101,  sec.  24  and  25.) 


MILLS— V—]\IISMARKIXG  CATTLE,  HOGS,  ETC.     917 

V.    INDICT3IENT  AGAINST  MILL  OWNERS  FOR  KEEPING  FALSE  TOLL  DISHES. 

1.  In  an  indictment  under  the  Eev.  Code,  ch.  71,  sec.  6  and  7 
against  a  mill  owner,  wherein  it  was  charged  that  he  ''did  keep 
in  his  mill  a  false  toll  dish,  for  the  purpose  of  exacting  more  toll 
than  by  law  he  of  right  ought  to  do,"  and  that  "by  means  of  said 
false  toll  dish  he  exacted  unlawful  toll,"  against  the  statute,  &c., 
it  was  held  that  ihQ  allegations  were  sufficiently  supported  by 
proving  that  the  mill  owner  kept  a  measure  containing  one  sev- 
enth, and  another  one  sixth  of  a  half  bushel,  with  which  he 
openly  took  toll  of  all  customers,  that  the  word  "false  toll  dish," 
as  used  in  the  statute,  meant  a  toll  dish  measuring  more  than 
one  eighth  of  a  half  bushel.     State  v.  Perry,  5  Jones,  252. 

2.  In  an  indictment  under  the  act  for  keeping  a  false  toll  dish, 
it  is  unnecessary  to  aver  the  capacity  of  the  toll  dish  charged  to 
be  a  false  one.     Ibid. 

3.  In  such  an  indictment,  it  was  also  held  that  it  ought  to  be 
averred  in  the  bill  that  the  mill  was  one  used  for  the  grinding 
of  wheat  and  corn,  but  that  when  it  was  charged  that  it  was  a 
mill  where  a  false  toll  dish  was  used  to  exact  more  toll  than  was 
lawful,  contrary  to  the  statute,  it  did  appear,  with  sufficient  cer- 
tainty, that  it  was  a  mill  for  grinding  corn  and  wheat.     Ihid. 

4.  An  indictment  under  the  act  cannot  b^  susta^ined  by  proof 
that  the  mill  owner  took  one  sixth  part  of  each  half  bushel  of 
corn  with  a  half  gallon  toll  dish — because  that  by  dry  measure 
is  the  measure  required  by  the  act.  State  v.  Nixon,  5  Jones, 
257. 


MISMARKING  CATTLE,  HOGS,  &C. 

See  (Indictment — When  an  indictment  will  lie,  45-46-136.; 
(Cattle  and  other  Live  Stock,  3.) 


MONEY. 

1.  Whoever  has  the  possession  of  money  is  presumed  to  be  the 
owner  of  it.  Qidnton  v.  Courtney,  1  Hay.,  40,  (51,)  S.  P.  Clary 
V.  Allison,  Ibid,  111,  (128. 

2.  For  money  pui-poses,  bank  notes  are  to  be  considered  as 
many;  as  for  instance  in  an  action  for  money  had  and  received 


918  MONEY— MORTGAGE. 

where  the  plaintiff  had  received  counterfeit  bank  notes  in  ex- 
cliange  for  a  good  one,  and  which  he  may,  therefore,  treat  as  a 
nullity.     Anderson  v.  Hawkins,  3  Hawks,  5B8. 

See  (Limitations — When  the  Statute  will  or  will  not  bar,  72.) 
(Indictment — In  what  cases  an  indictment  will  lie,  41.) 


MORTGAGE. 

1.  A  mortgage  not  registered  in  time,  is  ineffectual  against 
purchasers  subsequent  to  the  mortgage,  whose  conveyances  are 
registered  before  the  mortgage.  Cowan  v.  Green,  2  Hawks,  384. 
S.  F.  Davidson  V.  Beard,  Ibid,  520.     Tate  v.  Brittain,^  Hawks,  55. 

2.  A  mortgage  is  good  only  from  the  time  of  its  registration. 
Ibid.  (See  Rev.  Code,  ch.  37,  sees.  22  and  23,  as  to  the  present 
law  on  the  subject.) 

3.  The  act  of  1789,  passed  for  the  more  easy  redemption  of 
mortgages,  applies  in  those  actions  of  ejectment  only,  in  which 
the  parties  stand  in  their  original  simple  state  of  mortgagor  and 
mortgagee.  Devereux  v.  Ma.rsoratti,  3  Hawks,  338.  (The  act  of 
1789  was  re-enacted  in  the  Revised  Statutes  of  1836,  ch.  37,  sec. 
28,  but  seems  to  have  been  omitted  in  the  Revised  Code.  See 
ch.  37,  and  index  title  Mortgage.) 

4.  Where  a  mortgagee  obtained  judgment  and  execution  for 
his  mortgage  debt,  and  under  the  act  of  1812  sold  the  e<pity  of 
redemption  in  the  mortgaged  premises,  it  was  held  that  in  a  suit 
by  the  mortgagor  against  the  purchaser  at  such  sale,  that  he  had 
no  right  of  action  against  him  at  law  (whatever  might  be  the 
equitable  rights  of  either)  for  the  amount  of  his  bid,  on  the 
ground  of  its  being  a  bid  for  so  much  beyond  the  amount  due 
on  the  mortgage,  because  the  contract  of  sale  was  made  with 
the  sheriff,  and  he  was  not  such  an  agent  of  the  defendant  in 
the  execution,  as  to  enable  the  latter  to  recover  in  his  own  name,, 
from  the  purchaser,  the  price  of  land  sold  by  the  former.  Coxc 
v.  CamjD,  2  Dev.,  502. 

5.  Where  the  mortgagor  and  mortgagx^e  join  in  a  bargain 
and  sale  before  the  estate  of  the  latter  has  become  absolute,  the 
bargainee  is  in  under  the  mortgagor.     Wall  v.  fVhite  3  Dev.,  105. 

6.  Where  the  mortgage  debt  is  paid  within  the  period  limited 
by  the  deed,  the  estate  of  the  mortgagee  is  thereby  divested^ 
and  he  has  nothing  but  a  possession,  which  is  defeated  by  the 
entry  of  the  mortgagor  or  his  vendee ;  and  in  such  case  upon  the 
entry  of  the  vendee  of  the  mortgagor  and  mortgagee,  the  bar- 
gain and  sale  becomes  the  deed  of  the  mortgagor  and  the  con- 
firmation of  the  mortgagee.   Ibid. 


I\IOETGAGE.  919 

7.  A  deed  executed  to  secure  recited  debts  is  a  mortgage,  al- 
though it  contains  neither  a  jyroviso  for  redemption  nor  a  decla- 
ration of  its  trusts,  and  the  fact  of  the  trust  of  the  surplus  be- 
ing declared  in  a  separate  and  unregistered  paper  will  not  make 
it  void  for  the  recited  debts.     SJanner  v.  Cox,  4  Dev.,  59. 

8.  The  possession  of  a  mortgagor,  or  of  those  claiming  under 
him  is  the  possession  of  the  mortgagee ;  and  if  the  mortgagor 
be  ousted  by  a  stranger,  and  regain  the  possession,  he  regains  it 
still  as  the  tenant  of  the  mortgagee.  Gioyn  v.  WeUhorn,  1  Dev. 
and  Bat,  313. 

9.  An  instrument  in  the  form  of  a  bill  of  sale  from  A  to  B 
for  a  female  slave,  with  this  proviso,  "  provided  if  the  said  A, 
should  well  and  truly  pay  unto  the  said  B,  the  above  sum  herein 
mentioned,  before  his  death,  then  the  above  obligation  to  be 
void — only,  the  increase,  if  any,  to  remain  the  property  of  B"  is 
a  mortgage  to  secure  the  re-payment  of  the  sum  advanced  and 
mentioned  in  the  instrument;  and  if  the  mortgagor  remain  in 
the  possession  of  the  slave  and  her  increase  during  life,  and  die, 
leaving  the  money  unpaid,  the  mortgagee  or  his  personal  repre- 
sentatives, may  at  law  recover  the  slaves  of  the  personal  repre- 
sentatives of  the  mortgagor.  Joyner  v.  Vincent,  4  Dev.  and 
Bat.,  512. 

10.  A  mortgagee  is  not,  under  any  circumstances,  as  between 
him  and  the  mortgagor,  obliged  to  take  possession  of  the  mort- 
gaged property  before  a  forfeiture;  and  until  a  forfeiture  by  the 
non-payment  of  the  money,  the  possession  of  the  mortgagor 
cannot  be  adverse  to  the  mortgagee,  so  as  to  create  a  bar  by  the 
statute  of  limitations.     Ibid. 

11.  A  mortgagee,  after  the  day  of  payment  passed,  may  bring 
an  action  of  ejectment  against  the  mortgagor,  without  any  no- 
tice to  quit  or  demand  of  possession.  Fuller  v.  Wadsworth,  2 
Ired.,  2(i3. 

12.  A  mortgage  was  made  which  was  subject  to  the  lien  of  an 
execution,  under  which  the  land  was  sold  and  brought  more 
than  enough  to  satisfy  it,  and  it  ivas  Iteld  that  the  mortgagee  was 
entitled  at  law  to  recover  the  surplus.  Jones  v.  Thomas,  4  Ired., 
12. 

13.  The  possession  of  a  wadow  of  land  assigned  to  her  in 
dower,  is  not  adverse  to  the  mortgagee  of  her  husband,  or  to  the 
assignee  of  the  husband.  The  widow's  estate  in  her  dower  land 
is  but  a  continuation  of  that  of  her  husband,  and  is  affected  by 
the  same  estoppels,  which  attached  to  it  in  the  hands  of  the 
husband.      Williams  v.  Bennett,  4  Ired.,  122. 

14.  The  mortgagor  is  concluded  by  his  deed,  and,  after  its  ex- 
ecution, his  possession  is  by  the  consent  of  the  mortgagee  and 
is  in  law  the  possession  of  the  mortgagee.     Ibid. 

15.  A  mortgagor,  or  one  claiming  under  him,  is  not  entitled 
to  a  notice  to  quit  from  the  mortgagee.     Ibid. 


920  MOETGAGE. 

16.  A  delay  of  a  mortgagee  to  enforce  the  payment  of  his 
debt  is  not  fraudulent  so  as  to  make  his  mortgage  void,  but  the 
creditor  may  have  his  remedy  in  equity,  or  promptly  at  law  by 
a  sale  of  the  equity  of  redemption.     Davis  v.  Evans,  5  Ired.,525. 

17.  One  who  has  made  a  mortgage  to  secure  a  debt,  may  af- 
terwards convey  the  same  property  absolutely  to  the  mortgagee 
in  satisfaction  of  the  debt,  provided  the  conveyance  be  bona  fide 
and  for  a  fair  price.     Shelton  v.  Hampton,  6  Ired.,  216. 

18.  The  following  sealed  instrument  was  executed  between 
the  parties:  "Know  all  men  by  these  presents,  that  I.  E.  T.  have 
this  clay  bargained  for  a  sorrel  filly  Avith  W.  G.,  which  filly  I 
want  to  stand  as  security  until  I  pay  him  lor  her.  I  also  prom- 
ise to  take  good  care  of  her."  It  was  held  that  upon  the  face  of 
the  instrument  it  was  doubtful,  whether  it  was  intended  as  a 
mortgage  or  conditional  sale,  and  that  it  was  properly  left  to  the 
jury  to  determine  its  character  from  the  accompanying  circum- 
stances.     Gaither  v.  Teague,  7  Ired.,  460. 

19.  Whether  an  instrument  is  a  mortgage  or  not,  is  a  question 
of  law  for  the  court,  and  it  is  error  to  submit  it  to  the  jury. 
Smithv.  Jones,  lo  Ired.,  442. 

20.  The  statute  presumption  of  the  payment  of  mortgages, 
from  lapse  of  time,  is  payment  at  the  day  the  debt  fell  due,  and 
the  legal  estate  revests  in  the  mortgagor  without  a  re-convey- 
ance. As  where  the  owner  of  land  sold  it  and  took  a  mortgage 
for  the  purchase  money,  and  the  purchaser  entered  and  continu- 
ed in  possession  for  more  than  tliirteen  years ;  it  icas  held  that 
the  condition  of  the  mortgage  deed  was  performed  at  the  day 
and  the  legal  estate  revested  in  the  mortgagor  by  force  of  the 
condition.  Powell  v.  BrinJdey,  Busb.,  154.  (See  Eev.  Code,  ch. 
65,  sec.  19.) 

21.  As  between  the  parties,  a  mortgage  is  valid  without  reg- 
istration.    Leggett  v.  Bullock,  Busb.,  283. 

22.  A  conveyance  of  a  chattel  in  writing  absolute  in  the  con- 
veying part,  to  which  is  added  a  condition  that  it  shall  be  void, 
if  the  vendor  pay  to  the  vendee  a  certain  sum  of  money  which 
he  owes  to  him,  is  a  mortgage  and  is  void  as  against  creditors  if 
not  duly  registered.     3IcFadden  v.  Turner,  3  Jones,  481. 

23.  A  mortgagee  who  has  had  seven  years'  possession  of  the 
premises  under  his  mortgage  deed  previously  to  the  entry  of  a 
stranger,  can  recover  the  possession  from  him  by  an  action  of 
ejectment  whether  the  mortgage  debts  have  been  paid  or  not. 
Bennett  v.  Williamson,  5  Jones,  307. 

See  (Estoppel — By  matter  other  than  by  record  or  deed,_  9.) 
(Execution — What  may  be  levied  on  and  sold  under  execution, 
9-10-11-12-13.)  (Registration,  9.)  (Trover— Where  it  will  lie, 
23.)     (Usury — What  transactions  are  usurious,  25-26.) 


MURDER— NAVIGATION— NEGLIGENCE,  ETC.       921 


MURDER. 


See  (Homicide.) 


NAVIGATION. 

See  (Constitution — Acts  which  have  been   declared  constitu- 
tional, 8-10.)     (Rivers  and  Creeks,  1-2-8-9-10-11-12.) 


NEGLIGENCE. 

See  (Action  on  the  case — When  the  action  will  or  will  not  lie 
in  other  cases.  2-7-8-9-10-15-16-17-19-21-22-23-24-25-26- 
31-32-33-84-35-36-37-40-41-42-43-44.)  (Bailment,  1-2-11- 
12-13-14-18.) 


NEW  TRIAL. 


I.  When  and  upon  what  terras  granted 

in  civil  cases» 
II.  When  refused  in  civil  cases. 


III.  When  granted  or  refused  in  crimi- 

nal cases. 

IV.  When   ordered    or  refused   by  the 

supreme  court. 


I.       WHEN   AND   UPON   WHAT    TERMS    GR.\NTED    IN    CIVIL   CASES. 

1.  A  new  trial  granted  on  payment  of  full  costs,  after  a  non- 
suit voluntarily  suffered,  on  the  plaintiff's  making-  affidavit  that 
a  witness  by  whom  he  expected  to  repel  the  plea  of  the  statute 
of  limitations,  had  voluntarily  withdrawn  himself  just  before  the 
cause  was  called  for  trial.     Shep'pavd  v.  Salter,  Mar.,  40,  (31.) 

2.  Where  the  law  is  clearly  for  the  plaintiff,  the  court  will 
grant  a  new  trial,  though  several  juries  iiave  found  for  tlie  de- 
fendant, ^fuqjhy  V.  Ginon,  2  Hay.,  162,  (347.)  S.  P.  Jones  v. 
Ridley,  2  Car.  Law  Repos.,  397,  (280.)     Hamilton  v.  Bullock,  2 


922  NEW  TRIAL— I. 

Hay.,  224,  (399.)  Commissioners  of  Fayetteville  v.  James,  1  Miirph., 
40/ S.  C.  Conf.  Rep.,  55(5,  (514.) 

3.  After  special  verdict  iiad  been  found  live  years  and  argued 
twice,  a  motion  to  show  cause  for  a  new  trial  was  granted. 
Hi'im  V.  Wood,  2  Hay.,  220,  (394.) 

4.  If  it  be  proved  that  the  prevaihng  party  has  tampered  with 
the  jurv,  a  new  trial  will  be  granted.  Wright  v.  Wright,  1  Car. 
L.  R.,  363,  (31.) 

5.  A  rule  for  a  new  trial  may  be  entered  nunc  pro  tunc,  the 
clerk  having  omitted  to  enter  it  at  the  proper  time.  Hoioard  v. 
Person,  1  Murph.,  100,  S.  C.  2  Hay.,  37(5,  (573.) 

6.  A  new  trial  was  granted  to  the  plaintiff  in  an  action  of 
deceit  in  the  sale  of  a  slave,  when  the  jurj'  found,  against  very 
strong  circumstantial  evidence  to  prove  the  deceit,  there  being- 
no  positive  evidence  of  the  fact.  3Iann  v.  Parker,  2  ]\Iurph.,  2(52, 
S.  C.  1  Car.  L.  R.,  242,  (19.) 

7.  The  court  may  grant  a  new  trial  in  an  action  of  slander, 
when  the  jury  have  fonnd  a  verdict  for  the  defendant  in  a  case 
where  they  ought  to  have  given  exemplarv  damages  to  the  plain- 
tiff.    Horton  v.  B.eavis,  2  Gar.  L.  R.,  276,  (256.) 

8.  If  a  plaintiff  be  non-suited  because  not  ready  for  trial  when 
his  cause  is  called,  he  may,  upon  a  sufficient  affidavit,  have  the 
non-suit  set  aside  and  a  new  trial  granted  on  the  payment  of 
costs.      Williams  v.  Harper,  2  Car.  L.  R.,  401,  (284.) 

9.  Where  the  plaintiff  obtains  a  verdict,  but  the  statement  of 
the  case  shows  he  had  no  title,  a  new  trial  must  be  granted.  But 
if  the  merits  appear  to  be  with  him,  the  court  will  give  him  leave 
to  add  other  counts.  Pollock  v.  Kittrell,  N.  C.  Term,  R.,  152, 
(585.) 

10.  ^  here  a  defendant  upon  being  sued  on  a  contract,  pleads 
the  statute  of  limitations  which  plea  is  true,  but  the  jury  disre- 
gards it  and  finds  f^r  the  plaintiff,  the  court  will  grant  a  new 
trial,  if  justice  has  not  been  done  on  the  merits.  Spurlin  v. 
Rutherford,  2  Murph.,  360. 

11.  A  venire  de  novo  will  be  granted,  where  the  jury  in  a  spe- 
cial verdict  find  the  evidence  and  not  the  facts.  Cherry  v.  Slade, 
3  Alurph.,  S2. 

12.  A  new  trial  will  be  granted  for  misdirection,  although  the 
record  does  not  show  that  the  verdict  ought  to  have  been  other- 
wise, had  the  court  directed  otherwise.  Tate  v.  Southard,  1 
Hawks,  45. 

13.  A  new  trial  will  sometimes  be  granted  on  the  ground  of 
surprise  in  matter  of  law,  as  where  the  question  is  really  a 
doubtful  one.      Wellborn  v.  Younger,  3  Hawks,  205. 

14.  Where  the  facts  in  a  special  verdict  are  not  sufficient  to 
dispose  of  all  the  issues  submitted  to  the  jury,  no  judgment  can 
be  given  thereon,  and  a  new  trial  must  be  awarded.  Humphreys 
V.  Buie,  1  Dev.,  184. 


NEW  TEIAL— I-II.  923 

15.  "When  the  plaintiff  prays  proper  instructions  as  to  the  ti- 
tle of  the  defendant,  which  are  refused,  a  new  trial  will  be  gran- 
ted, although  if  the  defendant  had  prayed  proper  instructions  as 
to  the  title  of  the  plaintiff,  the  judgment  would  have  been  cor- 
rect.     Walton  V.  i^fcdliiigs,  4  Dev.,  56. 

16.  Although  a  party  may  get  a  verdict,  notwithstanding  an 
erroneous  charge  against  him  upon  a  particular  point,  yet  if  the 
opinion  given  may  have  prevented  the  other  party  relying  on, 
or  have  excluded  from  the  case  stated,  other  evidence  that  was 
given,  a  new  trial  will  be  granted.  Jones  v.  Touiuj,  1  Dev.  and 
Bat,  352. 

17.  Where  an  appeal  was  taken  from  the  judgment  of  a  jus- 
tice to  the  superior  court  by  one  of  two  defendants,  but  by  mis- 
take it  was  taken  up  as  the  appeal  of  both,  was  tried  as  the  ap- 
peal of  both,  and  upon  the  trial,  the  admissions  of  the  party  who 
did  not  appeal,  were  given  in  evidence  against  the  party  who  did 
appeal,  and  after  the  trial  and  a  verdict  in  favor  of  the  plaintiff, 
the  justice  was  permitted,  by  consent  of  parties,  to  amend  his 
proceedings  so  as  to  make  it  the  append  of  one  only,  it  was  held  that 
the  verdict  ought  to  have  been  set  aside  and  a  new  trial  granted; 
for  by  the  amendment  the  admissions  of  the  dismissed  party  were 
rendered  incompetent.      JVilfong  v.  Cline,  1  Jones,  41)9. 

See  (Forcible  Entry  and  Detainer,  2.) 

H.       WHEN  REFUSED  IX  CIVIL  CASES. 

1.  The  court  may  properly  refuse  a  new  trial  when  the  ver- 
dict, though  against  the  weight  of  the  evidence,  is  in  accordance 
with  the  justice  and  equity  of  the  case.  Billew  v.  Bor/gan,  1 
Hay.,  13,  (18.)  S.  P.,  Allen  y.  Jordan,  2  Hav.,  132,  (298,)  Man- 
ning V.  BricMl,  2  Hay.,  133,  (301.) 

2.  In  a  hard  action  against  an  officer  where  the  jury  have 
found  for  the  defendant,  whose  conduct  has  been  bona  fide  and 
according  to  common  practice,  though  not  strictly  according  to 
law,  the  court  will  not  grant  a  new  trial.  Taqert  v.  Hill,  Tay., 
277,  (117.)     S.  C,  Conf  Rep.,  164,  (283.) 

3.  If  a  plaintiff  supposing  himself  ready  to  press  a  trial,  and 
he  finds  himself  unprepared  because  his  testimony,  upon  which 
he  relied,  is  rejected,  the  allegation  of  surprise  is  not  sufficient 
to  have  the  nonsuit  set  aside  and  a  new  trial  granted.  Murray 
V.  Marsh,  2  Hay.,  290,  (472.) 

4.  A  new  trial  will  not  be  granted  on  the  ground  of  surprise, 
where  plaintiff  is  not  permitted  to  read  depositions  because  of 
the  deponent's  being  suretv  for  the  costs.  Arrington  v.  Cole- 
man, 2  Hay.,  300,  (489.X 

5.  Where  the  plaintift's  counsel  offered  on  the  trial  an  attested 
copy  of  a  bill  of  sale  of  a  slave,  without  accounting  for  the  orig- 
inal, and  was  thereupon  non-suited,  a  new  trial  was  refused, 


924  NEW  TEIAL— 11. 

because  it  was  a  case  of  negligence  and  not  surprise,     Thompson 
V.  Thompson,  2  Hay.,  405,  {Q12.) 

6.  Surprise  in  questions  of  law,  if  they  are  really  such,  as  to 
afford  room  for  doubt,  forms  a  ground  for  a  new  trial,  but  not 
the  mistake  of  counsel  in  a  plain  point.  Lester  v.  Zaclmry,  1 
Car.  L.  R.  380,  (50.) 

7.  Where  a  defendant  on  a  trial  for  assault  and  battery  pro- 
duced a  witness  to  prove  that  notice  was  given  to  the  plaintiff 
to  produce  a  warrant  on  which  he  rested  his  justification,  and 
the  witness  was  unable  to  recollect  what  the  notice  required  to 
be  produced,  the  court  refused  a  new  trial  because  the  defen- 
dant had  not  stated  in  his  affidavit  that  he  could  have  justified 
it  he  had  been  allowed  to  prove  the  contents  of  the  warrant. 
Gardner  v.  Barrel,  1  Car.  L.  E.  381,  (51.) 

8.  In  a  caveated  entry,  when  the  evidence  had  been  fairly  and 
fully  submitted  to  the  jury,  and  the  case  was  one  entirely  of 
matter  of  fact,  the  court  refused  a  new  trial.  Mclnnis  v.  31clanis, 
I  Car.  R.  R.  541,  (154.) 

9.  The  court  will  not  grant  a  new  trial  upon  the  affidavit  of 
one  of  the  jurors  that  he  did  not  agree  to  the  verdict.  Suttrel  v. 
Dry,  1  Murph.,  94. 

10.  Facts  known  to  a  party  before  trial  but  not  proved,  upon 
the  ground  that  he  believed  the  evidence  offered  was  sufficient, 
furnish  no  good  reason  for  a  ne  v  trial.  Person  v.  La'jy,  1 
Murph.,  115. 

11.  Affidavits  of  jurors  that  they  had  misconceived  a  material 
lact,  afford  no  ground  for  a  new  trial,  particularly  when  the 
affidavits  appear  to  be  in  the  handwriting  of  the  party  applying 
for  it.     Lester  v.  Goode,  2  ]\Iurph  ,  37. 

12.  It  is  no  ground  for  a  new  trial  that  a  bystander  remarked 
tliat  he  knew  more  about  the  matter  in  controversy  than  all  the 
witnesses  examined,  and  then  left  the  court  before  he  could  be 
summoned.    Ibid. 

13.  Where  the  plaintiff  neglected  to  produce  on  the  trial,  an 
essential  part  of  the  evidence,  a  new  trial  was  refused  although 
he  alleged  that  he  was  taken  by  surprise  because  the  objection 
had  not  been  taken  on  several  former  trials  of  the  same  cause. 
Porter  v.  Wood,  2  Car.  L.  R.  248,  (226.) 

14.  Where,  on  the  trial  of  an  issue  devisavit  vel  non,  the  will 
was  attested  by  two  witnesses,  one  of  whom  was  absent_  from 
the  state  and  whose  credibility  was  impeached  at  the  trial,  so 
that  the  will  was  proved  only  by  the  other,  whose  testimon_y  if 
credible,  the  court  instructed  the  jury,  was  sufficient  to  establish 
the  will,  although  the  absent  witness  was  proved  to  be  unworthy 
of  credit,  the  jurv  found  against  the  will,  and  the  court  refused 
to  grant  a  new  trial.      Wright  v.   Wrig  ,t,  2  Car.  L.  R.  625,  (429.) 

15.  In  action  of  tort,  the  court  will  not  grant  a  new  trial  for 


NEW  TRIAL— II.  925 

■excessive  damages,  unless  they  are  grossly  extravagant.  Dodd 
V.  Hamilton,  N.  C.  Term  R.,  31,  (471.) 

1(3.  If  the  jmy  find  against  the  plea  of  usury,  though  the 
verdict  may  be  against  the  weight  of  evidence,  yet  if  it  be  a 
case  of  some  doubt  Avhether  usuiy  was  committed,  the  court 
will  refuse  to  grant  a  new  trial.  King  v.  Hill,  N.  C.  Term  R., 
211,  ((i44.) 

17.  A  new  trial  will  not  be  granted  on  an  affidavit  lor  the 
absence  of  a  material  witness  luider  circumstances  which  would 
not  have  induced  the  court  to  continue  the  cause  for  the  absence 
of  the  witnei-8.     PeelleJ  v.  Overton,  2  Murph.,  384. 

1<^'.  ^Viieie  a  defendant  moved  for  a  new  trial  upon  the  ground 
that  a  copy  of  a  deed  under  which  it  was  alleged  that  he  claimed, 
was  admitted,  although  no  notice  had  been  given  to  him  to  pro- 
duce it,  the  new  trial  was  refused  because  he  declined  to  make 
affidavit  that  he  did  not  claim  under  the  deed,  and  it  did  not 
appear  that  any  injustice  had  been  done  by  the  verdict.  JVagstaf 
V.  Smith,  2  Hawks,  45,  S.  P.  Clark  v,  Blcurd,  3  Hawks,  208. 

19.  If  a  release  be  offered  in  the  course  of  a  trial  to  render  a 
witness  competent,  and  it  is  read  without  objection  made  at  the 
time  as  to  the  want  of  the  proof  of  its  execution  by  the  subscrib- 
ing witness,  such  objection  cannot  be  raised  after  a  verdict  as  the 
ground  of  a  new  trial.      Tatem  v.  Paine,  4  Hawks,  G4. 

20.  Where  an  objection,  which  would  have  been  ameie  matter 
of  form,  if  made  on  the  trial,  is  not  made  until  after  a  full  and 
fair  trial,  a  new  trial  should  not  be  granted,  ii/oore  v.  McNairq, 
1  Dev.,  319. 

21.  In  trespass,  when  not  guilty  and  justification  are  pleaded, 
and  the  jury  find  the  defendant  not  gnilty,  the  rejection  of  ad- 
missible testimony  pertinent  to  the  latter  issue  only,  is  not 
ground  for  a  new  trial.     Pierce  v.  3Iyrick,  1  Dev.,  345. 

22.  If  a  question  of  law  be  improperly  submitted  to  the  jury, 
and  they  decide  it  correctly,  there  is  no  ground  for  a  new  trial. 
Smith  V.  Shepard,  1  Dev.,  401. 

23.  Wh(>re  evidence  proper  for  one  purpose,  was,  by  the  coim- 
s^d  who  introduced  it,  urged  to  the  jury  as  proof  of  a  fact,  to 
which  it  was  incompetent,  and  the  counsel  on  the  other  side 
replied  to  this  argument,  but  moved  for  no  specific  instructions 
upon  the  point  from  the  bench,  it  vas  held  that  there  was  no 
ground  for  a  new  trial.     Simpson  v.  Blount,  3  Dev.,  34. 

24.  Where  there  are  several  counts  in  a  declaration,  and  on 
one  of  them  im-proper  evidence  is  received,  if  the  party  against 
whom  the  evidence  was  offered,  obtained  a  verdict  on  thatcormt, 
he  has  no  right  to  a  new  trial  on  the  other,  on  which  the  verdict 
was  against  him.      Ycuvr/  v.  Hairstov,  3  Dev.,  55. 

25.  The  admission  of  improper  testimony,  not  objected  to  by 
the  opposite,  is  no  ground  for  a  new  trial.  Green  v.  Harman,  4 
Dev.,  158. 


926  NEW  TRIAL— II. 

26.  The  refusal  by  tlie  court  to  permit  a  witness  to  be  re-ex- 
amined, is  no  ground  for  a  new  trial,  as  the  refusal  was  a  matter 
of  discretion  with  the  court.     Barton  v.  MoiyMs,  4  Dev.,  240. 

27.  Where  no  particular  instructions  were  asked  on  the  trial, 
a  new  trial  will  not  be  granted,  unless  the  party  praying  it,  can 
show  that  tlie  jury  was  probably  misled  by  the  charge  of  the 
judge.     Torrtn-'e  v.  Graham,  1  Dev.  and  Bat.,  284.  * 

28.  The  reception  of  improper  testimony  will  not  be  a  ground 
lor  a  new  trial,  if  the  only  effect  of  suoh  testimony  can  be  to 
remove  or  weaken  improper  testimony  introduced  on  the  other 
side.  A  judgment  will  not  be  reversed  for  inadvertencies  or 
mistakes  whicli  did  not  and  could  not  affect  the  rights  of  him 
who  complains  of  them.  Ingram  v.  JVatkins,  1  Dev.  and  Bat., 
442. 

29.  Where  testimony,  competent  for  one  purpose  but  not  an- 
other, Avas  admitted  after  objection,  but  no  instruction  as  to  its 
effect  was  prayed  for,  and  it  did  not  appear  for  what  purpose  it 
was  used,  it  ivas  held  that  its  reception  alone  could  not  be  as- 
signed as  a  ground  for  a  new  trial.  Dobson  v.  Murphey.  1  Dew 
and  Bat,  586. 

30.  jMatters  which  might  been  introduced  on  the  trial  oi  a 
case,  but  which  were  not  brought  forward  until  a  motion  was 
made  for  a  new  trial,  should  not  be  acted  on  by  the  court.  Gib- 
son V.  Partee,  2  Dev.  and  Bat,  530. 

31.  If  evidence  strictly  irrelevant  has  been  admitted,  a  right 
verdict  ought  not  to  be  set  aside  and  a  new  trial  granted  on  ac- 
count of  its  reception,  unless  it  is  perceived  that  it  worked  a 
prejuchce  to  the  party.     Maij  v.  Gentry,  4  Dev.  and  Bat,  117. 

32.  Where  matters  might  have  been  offered  in  evidence  on  the 
trial,  but  were  not,  they  form  no  ground  for  granting  a  new 
trial.     Beed  v.  Moore,  3  Ired.,  310. 

33.  It  is  no  ground  for  a  new  trial,  that  a  challenge  of  a  juror 
by  a  party  has  been  improperly  overruled,  where  the  cause  has 
l)een  tried  by  a  jury  to  whom  the  party  had  no  objection,  not 
liaving  been  prevented  from  exercising  his  privilege  of  challen- 
ging four  jurors  peremptorily.      WhitaJcer  v.  Carter,  4  Ired.,  461. 

34.  Where  a  part  of  the  charge  of  the  court  to  the  jury  rela- 
ted to  a  matter  totally  immaterial,  benefitting  neither  plaintiff 
nor  defendant,  it  is  no  ground  for  a  new  trial.  Bailiff  v.  Himt- 
Jij,  5  Ired.,  545. 

35.  Where  a  question  of  law  is  left  to  [the  jury,  and  the  ver- 
dict shows  that  they  decided  it  properly,  it  is  no  ground  for  a 
new  trial.     Marshall  v.  Fisher,  1  Jones,  111. 

36.  Where  the  judge  erred  on  the  trial  in  ruliiig  out  testi- 
mony, but  if  proposed  by  the  opposite  counsel  to  waive  the  ob- 
jecti(3n  and  permit  the  testimony  to  be  received,  which  the  coun- 
sel who  had  offered  it  declined ;  it  ivas  held  that  the  error  was 


NEW  TRIAL— II-III.  927 

cured  and  the  party  was  not  entitled  to  a  new  trial.  Marshall 
V.  Fliiw,  4  Jones,  199. 

37.  When  testimony  offered  to  prove  a  fact  may  have  been 
inqiroperly  rejected,  yet  it  will  be  no  ground  for  a  new  trial  if 
the  court  assumes  such  fact  to  be  true  in  the  charge  to  the  jury. 
Thompson  v.  3Iorris,  5  Jones,  151. 

38.  Where  a  judge  improperly  rejected  evidence  as  to  a  par- 
ticular fact  material  to  the  issue,  but  afterwards  on  instructing 
the  jury,  told  them  to  consider  the  fact  as  proved  and  to  give 
the  party  offering  the  evidence  the  full  benefit  of  it  in  making 
up  their  verdict;  it  ivas  held  that  the  error  was  corrected,  and 
that  it  Avas  no  ground  for  a  new  trial.  Morehead  v.  Brown.,  (> 
Jones,  367. 

39.  Where  a  judge  gave  instructions  not  material  toanypoiut 
in  the  cause,  it  is  no  ground  for  a  new  trial  Avhetherthe  instruc- 
tions were  correct  or  not.     Skaiu  v.  Etheridge,  7  Jones,  i'lb. 

40.  It  is  no  ground  for  a  new  trial  that  the  court  refused  to 
permit  a  fact  to  be  proved,  which  was  admitted  by  the  opposite 
party.     Fridgen  v.  Bounerman,  8  Jones,  53. 

41.  If  the  court  erroneously  submit  a  question  of  law  to  the 
jury,  and  they,  by  their  verdict,  decide  it  correctly,  it  is  not  a 
ground  for  a  new  trial.     Stokes  v.  Arey,  8  Jones,  66. 

42.  An  error  in  tiie  charge  of  the  judge  to  the  jury,  which  can 
not  liave  done  an  injury  to  the  losing  party,  is  no  ground  for  a 
venire  de  novo.     Fagan  v.  Williamson,  8  Jones,  433. 

HI.       AVHEN  GRANTED  OR  REFUSED    IN  CRIMINAL  CASES. 

1.  Where  one  was  convicted  of  peijury,  and  before  sentence, 
there  was  another  trial  of  the  suit  in  which  the  perjury  was  al- 
leged to  have  been  committed  and  in  that  trial,  the  court  doubt- 
ed whether  the  person  charged  with  peijury  had  sworn  falsely, 
there  was  a  new  trial  granted  him  on  that  ground.  State  v. 
Greemcood,  1  Hay.,  141,  (162.) 

2.  It  is  no  ground  for  a  new  trial  that  one  of  the  jurors  was 
not  a  freeholder.     Ihid.     S.  P.,  State  v.  Craiufoul,  2  Hay.,  298, 

(^^^■)  .  .  '  .  . 

3.  \\  hen  the  charge  of  the  judge  upon  the  law  arising  from 

tlie  evidence  is  partly  right  and  partly  wrong,  and  it  cannot  be 
told  upon  what  ptirt  of  the  evidence  the  verdict  was  found,  a 
new  trial  will  be  granted.     State  v.  Jernagan,  N.  C.  Term,  Ii.,44^ 

4.  When  a  defendant  in  an  indictment  has  been  tried  without 
any  issue  having  been  joined,  the  court  will  award  a  venire  de 
novo,  either  to  the  defendant  or  to  the  State.  State  v.  Hardie,  3 
MvLYvh.,  232. 

5.  The  supreme  court  cannot  grant  the  prisoner,  even  in  a 


928  NEW  TRIAL— III. 

capital  case,  a  new  trial,  upon  the  ground  that  the  jury  have 
found  contrary  to  evidence      State  v.  Jeffreys,  3  jNIurph.,  840. 

6.  A  new  trial  will  not  be  granted  to  a  prisoner,  oecause  a 
juror,  who  had  sworn  that  he  had  not  formed  an  opinion  as  to 
the  guilt  or  innocence  ot  the  prisoner,  had  remarked  to  a  person 
a  few  minutes  before  "that  he  could  not  serve  becau-e  he  had 
made  up  an  opinion.     State  v.  Scott,  1  Havv-ks,  24. 

7.  A  new  trial  will  be  granted  to  a  prisoner,  if  improper  tes- 
timony have  been  admitted,  though  there  was  sufficient  testi- 
mony to  justify  his  conviction  \^nthout  it.  It  cannot  be  told 
upon  which  testimony  the  jury  relied.     State  v.  Allen,  1  Hawks,  6, 

8.  After  an  acquittal  of  a  defendant  on  a  state  prosecution,  a 
new  trial  cannot  be  granted.  State  v.  Taylor^  1  Hawks,  462,  S. 
P.  State  V.  3Iartin,  3  Hawks,  381. 

9.  When  a  question  of  law  has  been  improperly  left  to  the 
jury,  but  has  been  correctly  decided  by  them,  a  new  trial  will 
not  be  granted.     State   v.  JacTison,  2  Dev.,  563. 

10.  Where,  on  a  trialfor  murder,  the  prisonerprovedhis  general 
peaceable  demeanor,  and  the  judge  informed  the  jury  that  evi- 
dence of  character  was  entitled  to  but  little  weight,  where  facts 
were  positively  sworn  to,  and  it  was  doubtful,  from  the  case, 
whether  this  instruction  referred  to  the  fact  of  killing,  or  to  the 
amount  of  provocation,  a  new  trial  was  granted.  State  v. 
Lipsey,  3  Dev.,  485. 

11.  The  efi'ect  of  the  separation  of  the  jury,  before  they  return 
their  verdict,  and  tlie  difference  between  a  new  trial  and  a  venire 
de  novo  discussed  and  stated  at  length.  State  v.  Miller,  1  Dev, 
and  Bat.,  500. 

12.  An  assumption  by  a  judge  in  his  charge,  that  a  fact  de- 
posed to  is  true,  but  which,  if  true,  cannot  prejudice  the  prison- 
er, is  no  ground  for  a  new  trial.     Ibid. 

13.  When  the  attorney  general,  upon  an  appeal  by  the  defen- 
dant on  an  indictme'nt,  informs  the  supreme  court  that  he  has 
looked  into  the  record,  and  that  he  consents  that  the  venire  de 
novo  prayed  for  should  be  granted,  the  court  Avill,  as  a  matter  of 
course,  grant  the  venire  de  novo,  without  examining  into  the 
errors  assigned.     State  v.  Volentine,  7  Ired.,  141. 

14.  In  a  capital  trial,  if  the  judge  eulogise  a  witness  it  is  not 
a  ground  for  a  venire  de  novo,  if  the  statement  of  the  case,  which 
is  the  plaintiff's  bill  of  exceptions,  shows  that  such  a  witness  was 
unimpeachable.     State  v.  Hcviris,  1  Jones,  190. 

15.  Where  a  judge  in  charging  the  jury  in  a  case  of  homicide 
presents  two  views  of  the  evidence,  in  one  of  which  his  instruc- 
tion is  erroneous,  though  the  other  was  right,  if  it  be  left  uncer- 
tain whether  or  not  the  verdict  was  predicated  on  the  erroneous 
instruction,  the  defendant  is  entitled  to  a  venire  de  novo.  State 
V.  Inrjold,  4  Jones,  217. 

16.  When  the  error  complained  of  in  the  charge  of  the  judge 


NE^Y  TRIAL— III-IV.  929 

is  such  that  it  could  not  in  any  degree  aifect  the  prisoner's  case 
to  his  prejudice,  a  venire  de  novo,  will  not  be  ordered.  State  v. 
Frank,  5  Jones,  384. 

17.  An  erroneous  remark  of  a  judge  upon  the  weight  of  tes- 
timony which  was  inadmissible,  and  which  remark  could  not 
have  influenced  the  verdict,  is  not  a  ground  for  granting  a  new 
trial.     State  v.  Neville,  6  Jones,  423. 

18.  It  is  error  for  the  judge  to  leave  to  the  jury  the  decision 
of  a  fact  on  which  the  admissibility  of  evidence  depends.  But 
if  the  prisoner  making  the  exception  could  not  have  bean  injur- 
ed by  it,  the  error  is  not  a  ground  for  a  new  trial.  State  v.  Di^^k, 
2  Winst.,  45. 

IV.       WHEN    ORDERED    OR    REFUSED    BY    THE    SUPREME    COURT. 

1.  When  the  transcript  sent  to  the  "supreme  court  contains  so 
imperfect  a  statement  of  facts,  that  the  court  cannot  decide  sat- 
isfact(n-ily  to  themselves,  a  new  trial  will  be  ordered.  Ilation 
V.  Dew,  1  Car.  L.  11.,  524,  (137.,)  S.  P.,  Gilk!/  v.  Dickerson,  2 
Hawks,  341.  Banner  \.  l\lcMurraii,  4  Hawks,  93.  St(Ae  v.  Up- 
ton, 1  Dev.,  268.  (Overruled,  see  Fickett  v.  Pickett,  3  Dev.,  6., 
Thomas  v.  Alexander,  2  Dev.  and  Bat.,  385.) 

2.  A  case  being  sent  to  the  supreme  court  upon  a  particular 
point,  and  the  court  upon  looking  into  the  record  and  discover- 
ing that  there  were  other  material  points  arising  in  the  case  and 
connected  with  its  merits,  declined  deciding  the  point  sent  up 
and  awarded  a  venire  de  novo,  that  all  the  circumstances  relating 
to  the  points  discovered  in  this  court,  might  be  examined  in  the 
court  below.     Coivan  v.  Green,  3  JMurpli.,  569. 

3.  It  is  not  a  ground  for  the  supreme  court  to  grant  a  new 
trial,  that  the  court  below  has  not  stated  the  case  on  the  record ; 
for  the  appeal  is  not  necessarily  from  the  opinion  ot  the  court  on 
points  arising  out  of  the  facts  at  the  trial,  l)ut  may  be  for  error 
in  the  pleadings.     Frazier  v.  Felton,  1  Hawks,  231. 

4.  When  the  statement  of  the  facts  of  a  case  before  the  supreme 
court  is  su(;h  as  to  admit  of  two  views  of  them,  and  it  is  doubtful 
which  is  the  correct  one,  and  according  to  one  of  the  views,  the 
law  has  not  been  properly  administered  in  the  court  below,  a  new 
trial  will  be  ordered.     Love  v.   Wall,  1  Hawks,  313. 

5.  Where  it  appears  from  the  certificate  ot  the  judge,  that  a 
case  was  intended  to  be  made  out  by  him,  but  none  comes  up 
with  the  record,  the  supreme  court  will  order  a  venire  de  novo. 
Hamilton  v.  M':Cuh.ck,2  Hawks,  29,  S.  P.  State  v  Powers,^ 
Hawks,  376.     Andermn  v.  Hunt,  Ibid,  244. 

6.  When  the  transcript  of  the  record  showed  merely  that  the 
court  below  decided  upon  the  law  and  the  jury  returned  a  gen- 
eral verdict  on  the  facts,  a  new  trial  was  refused.  Jenkins  v, 
Lanndon,  2  Hawks,  386. 

17* 


930  NEW  TRIAL-IV, 

7.  When  a  new  trial  is  moved  on  the  ground  that  the  verdict 
is  contrary  to  law,  and  the  charge  of  the  court  below  is  not 
erroneous  as  to  the  law,  the  supren^e  court  cannot  order  a  ncAV 
trial,  for  it  has  net  the  power  to  ascertain  that  the  verdict  is 
contrary  to  law.     Neivhern  Bank  v.  FugJi^  2  Hawks,  389. 

8.  Where  a  judge  refused  further  testimony  after  the  close  of 
the  arguments  to  the  .jury  on  the  authority  of  a  former  case, 
which,  in  his  opiuion,  pl-evented  the  exercise  of  his  discretion  in 
the  reception  of  further  testimony  under  such  circumstances,  a 
veiire  de  novo  was  granted  by  the  supreme  coui't  Williams  v. 
Averiff,  3  Hawks,  308. 

9.  Where  upon  a  transcript  and  statement  of  the  case  sent 
to  the  supreme  court,  it  appears  that  the  charge  of  the  court 
was  not  applicalile  to  the  facts  stated,  a  new  trial  must  bt> 
granted,  for  it  there  were  no  other  evidence  but  that  stated,  the 
charge  was  irrelevant,  and  if  there  were  other  evidence,  it  should 
form  part  of  the  case.     Finch  v.  EJlwtt,  4  Hawks,  61. 

10.  Where  a  judge  below  is  correct  in  his  statement  of  a  rule 
of  law,  but  makes  a  misapplication  of  it,  yet  a  new  trial  will  not 
be  granted,  if  it  appear  from  the  finding  that  the  jury  were  not 
misled.     Taiem  v.  Paine,  4  Hawks,  64. 

11.  When  non  detinet,  or  ?;ow  assumpsit,  and  the  statute  of  lim- 
itations, are  pleaded  in  detinue  or  assumpsit,  and  the  jury  find 
the  general  issue  for  the  defendant,  the  court  will  not,  on  a 
motion  for  a  new  trial,  examine  into  the  correctness  of  the  charge 
•on  the  statute.  Morisey  v.  Bunting,  1  Dev.  3,  S-  P.  BuJlock  v. 
Bullock,  3  Dev.,  260.     Martin  v.  Wmujh,  2  Dev.  and  Bat.,  517. 

12.  A  new  trial  is  a  matter  of  discretion,  and  a  refusal  to 
grant  one  cannot  be  assigned  as  error.  The  supreme  court  is  a 
court  of  errors  in  law,  and  the  case  stated  by  the  judge  is  a  sub- 
stitute in  our  practice  for  a  bill  of  exceptions;  hence,  this  court 
cannot  grant  a  new  trial,  for  the  reason  simpl}^  that  the  judge 
below  refused  one,  because  that  refusal  is  not  error;  but  Mhere 
the  court  below  errs,  as  in  receiving  evidence,  instructing  the 
jury  and  the  like,  this  court  will  order  a  venire  de  novo,  as  a 
means  of  correcting  such  error.     State  Bank  v.  Hunter,  1  Dev.,  100, 

13.  A  new  trial  for  surprise  can  only  be  granted  in  the  court 
where  the  trial  was  had,  and  not  in  an  appellate  court.  Lindsay 
V.  Lee,  1  Dev.,  464. 

14.  When  a  verdict  is  against  the  evidence,  a  new  trial  can  be 
granted  only  hy  the  judge  who  tried  the  cause.  Alley  v.  Hamt- 
ion,  2  Dev.,  11. 

15.  Where  the  judgment  in  the  superior  court  was  rendered 
upon  a  point  reserved,  which  did  not  appear  on  the  record,  the 
remedy  is  for  the  supreme  court  to  order  a  venire  de  novo.  Dunett 
V.  Barksdale,  2  Dev.,  251. 

16.  Under  the  act  of  1777,  respecting  non-suits,  where  the 
superior  court  has  no  jurisdiction,  the  court  will  not  order  a  non- 


NEW  TRIAL-IV.  931 

?^uit,  unless  on  motion  of  the  defendant;  and  where  there  has 
been  no  such  motion,  but  a  verdict  and  judgment  for  the  plain- 
tiff, the  supreme  court  will  not  order  a  new  trial,  Allison  v 
Hancock,  2  Dev.,  296. 

17.  The  supreme  court  will  not  order  a  new  trial  on  the  ground 
of  excessive  damages,  that  being  a  matter  exclusively  within 
the  discretion  of  the  court  below.    Yofmg  v.  Hairstoii,  3'^Dev.,  55. 

17.  Where  a  party  against  whom  a  judge  expresses  an  opinion 
refuses  to  submit  to  it,  but  puts  his  case  to  the  jury  and  is  suc- 
cessful; a  new  trial  will  not  be  granted,  though  the  judge  may 
have  erred,  if,  upon  the  whole  case  the  verdict  is  correct.  Grice 
V  Rich%  3  Dev.,  (VI. 

19.  Where  the  defendant  must  finally  prevail,  a  new  trial  will 
be  ordered,  although  the  judgment  below  was  for  the  plaintiff,  and 
he  appealed.     Mordecai  v.  Parker.  3  Dev.  425. 

20.  Where,  in  the  court  below,  a  new  trial  was  moved  for, 
because  tlie  judge  expres.sed  an  opinion  on  the  weight  of  evi- 
dence, and  the  case,  certified  with  the  record,  stated  no  instance 
in  which  it  had  been  done,  but  that  the  judge  was  unconscious 
of  having  done  so,  it  was  held  that  the  supreme  court,  having  no 
power  to  ascertain  the  fact,  could  not  order  a  new  trial,  ^tate 
V.  Lipsey,  3  Dev.,  485. 

21.  The  supreme  court  cannot  set  aside  a  verdict  and  grant  a 
new  trial,  though  in  their  opinion,  the  verdict  was  found  upon 
slight  testimony.      Goodman  v.  Smith,  4  Dev.,  450, 

22.  Tlie  supreme  court  cannot  grant  a  new  trial  upon  the 
ground  that  the  verdict  was  against  the  evidence  or  the  weight 
of  the  evidence,  that  being  a  matter  of  discretion  with  the 
judge  who  presides  at  the  trial  in  the  court  below,  which  cannot 
be  revised  upon  appeal.     Long  v.  Gantleij,  4  Dev.  and  Bat.,  313. 

23.  The  supreme  court  cannot  reverse  a  judgment  of  the  su- 
p<^rior  court  and  order  a  new  trial,  because  of  the  alleged  finding 
■i)f  excessive  damages  by  the  jury,  or  of  the  refusal  of  the  judge 
to  set  aside  that  finding,  that  not  being  a  question  of  law  but 
of  discretion.     McRoe  v.  Lilly,  1  Ired.,  118, 

24.  If  the  charge  of  the  judge  to  the  jury  be  correct,  or  be 
such  that  the  party  against  whom  a  verdict  is  found  cannot  com- 
plain of  it,  a  mistake  of  the  jury  in  finding  a  verdict  without 
evidence,  or  against  evidence  or  against  the  law,  can  only  be 
corrected  hy  the  judge  presiding  at  the  trial,  and  cannot  be  re- 
vised by  tlie  supreme  court  upon  an  appeal.  Terrell  v.  Wigqins, 
I  Ired.,  172. 

25.  Surprise  on  the  trial  furnishes  no  ground  for  the  interfer- 
ence of  the  supreme  court,  it  being  matter  ior  the  sole  conside- 
ration of  the  court  below  on  a  motion  for  a  new  trial.  Wall  v. 
Jlinson,  1  Ired.,  27(1 

26.  Where  the  judge  below  has  misdirected  the  jury,  and  yet 
the  verdict  has  been  such  as  it  ought  to  have  been,  had  there 


932  NEW  TRIAL— IV. 

been  no  misdirection,  the  supreme  court  will  not  order  a  new 
trial.  It  will  do  so  only  where  the  misdirection  has  misled  the 
jury  into  a  Avrong  verdict.     Reynolds  v.  Magness,  2  Ired.,  26. 

27.  Although  it  is  erroneous  to  submit  to  the  jury  an  enquiry 
of  fact,  as  to  which  there  is  no  evidence,  yet  this  court  will  sup- 
pose the  evidence,  as  stated  in  the  case  brought  up  from  the 
court  below,  to  have  been  stated  only  in  reference  to  the  objec- 
tions there  raised,  and  will  not  grant  a  new  trial,  where  an  ex- 
ception as  to  the  total  want  of  evidence,  does  not  appear  to  have 
been  taken,  either  on  the  trial,  or  on  a  motion  for  a  new  trial. 
Beed  v.  Moore,  3  Ired.,  310. 

28.  Where  the  plaintiff  against  whom  the  judge  in  his  charge 
commits  an  error  obtains  the  verdict,  the  defendant  will  be  en- 
titled to  a  new  trial,  if  the  princij^le  so  erroneously  laid  down, 
might  have  prevented  his  making  a  fall  defence.  Clarke  v. 
Diggs,  €  Ired.,  159. 

29.  A  verdict  on  the  merits  of  the  case  is  to  be  set  aside,  and 
a  new  trial  granted  only  for  an  error  of  the  superior  court  prac- 
tically prejudicial.     Smith  v.  Smith,  8  Ired.,  29. 

dOS  In  order  to  obtain  a  venire  de  novoi'or  the  admission  of  im- 
proper evidence,  it  is  not  sufficient  to  state  matter  rendering  it 
probi\ble  that  such  evidence  may  have  been  received,  but  it  is 
indispensable  to  state  the  evidence  itself;  otherwise  the  supreme 
court  cannot  see  that  the  evidence  was  illegal,  and  judgment 
will  be  affirmed.     State  v.  Clark,  12  Ired.,  151. 

31.  When  in  detinue  there  is  a  verdict  for  the  plaintiff  and  an 
error  in  tlie  assessment  of  damages  only,  a  venire  de  novo  will  not 
be  ordered.     McAUister  v.  McAllister,  12  Ired.,  184. 

31.  A  party  claiming  a  new  trial,  because  of  evidence  improp- 
erly rejected,  must  set  forth  in  his  bill  of  exceptio)is,  what  was 
the  evidence  tendered,  in  order  to  enable  the  supreme  court  to 
decide  upon  its  relevancy.     Overman  v.  Coble,  13  Ired.,  1. 

33.  Where  there  is  error  in  the  charge  of  a  judge,  which  was 
excepted  to,  the  supreme  court  will  order  a  venire  de  noco,  unless 
the  appellee  can  show  conclusively  from  the  record,  that  the  er- 
ror could  not  in  any  wise  have  affected  the  verdict.  Chunn  v. 
Patton,  13  Ired.,  421. 

34.  The  supreme  court  will  order  a  venire  de  novo,  where  the 
judge  in  the  court  below  has  submitted  a  material  fact  to  the 
jury  without  any  evidence  to  support  it.  Commissioners  of 
Beaufort  v.  Duncan,  1  Jones,  234. 

35'.  Where  it  appears  from  the  record  proper  sent  to  the  su- 
preme court,  that  on  the  trial  below,  a  question  of  law  was  re- 
served by  the  court,  to  which  the  verdict  was  subject,  and  that 
question\vaB  decided  in  favour  of  the  defendant,  upon  which  the 
vei'dict  was  set  aside  and  a  nonsuit  ordered,  but  -upon  an  appeal 
by  the  plaintiff,  the  judgment  fails  to  state  what  that  question 


NEW  TRIAL— IV.  933 

was,  there  must  be  a  venire  de  novo.  Brown  v.  Kyle,  2  Jones, 
442. 

3G.  Where  an  error  in  the  judge's  charge  is  favorable  to  the 
party  excepting,  the  supreme  court  will  not  order  a  venire  de 
novo.     Ray  v.  Lipscomb,  3  Jones,  185. 

37.  The  supreme  court  will  not  order  a  venire  de  novo  for  the 
admission  of  testimony  entirely  immaterial,  and  which  could  not 
aifect  the  case  in  any  way.     Frnull  y.  llldtford,  3  Jones,  474. 

o8.  The  supreme  court  will  order  a  venire  de  novo  for  the  ad- 
mission of  immaterial  evidence,  when  it  was  calculated  to  mis- 
lead the  jury  and  may  have  done  so.  Patton,  v.  Porter,  3  Jones, 
539. 

39.  A  new  trial  can  only  be  granted  in  tlie  superior  court  up- 
on the  ground  that  the  verdict  is  against  the  weight  of  evidence 
and  cannot  for  that  cause  be  ordered  by  the  supreme  court.  Boy- 
hin  v.  Perry,  4  Jones,  325. 

40.  Where  the  question  was  whether  bonds  could  be  endorsed 
by  the  statute  law  of  another  state,  and  no  evidence  of  such  stat- 
ute law  was  produced  on  the  trial  in  the  court  below,  the  supremo 
court  will  not  grant  a  new  trial  for  an  error  caused  by  such 
omission,  if  it  be  certified  to  the  court  by  the  secretary  of  state 
that,  from  the  statutes  of  such  state  filed  in  the  executive  office, 
it  appears  that  bonds  are  made  negotiable  in  that  state.  Grace 
V.  Hanval),  (J  Jones,  94. 

41.  Where  the  instructions  given  in  the  court  below  could  not 
in  any  degree  prejudice  the  cause  of  the  exceptant,  even  if  erro- 
neous, it  is  no  ground  for  the  supreme  court  to  order  a  venire  de 
novo.     Hohhs  v.  Outhiv,  6  Jones,  1 74. 

42.  When  the  general  issue  is  pleaded  together  with  special 
pleas,  and  the  jury  find  all  the  issues  in  flivor  of  the  defendant, 
the  supreme  court  cannot  reverse  the  judgment  and  order  a  new 
trial  for  error  in  the  charge  of  the  judge  respecting  the  matter 
of  the  special  pleas.  _  Higdon  v.  Cha.stcane,  1  Winst.,  212. 

43.  When  a  question  arises  on  a  jury  trial  concernijigthe  com- 
petency of  a  witness,  and  the  parties  disagree  about  the  fVicts  on 
which  the  witness'  competency  depends,  and  the  judge  decides 
that  the  witness  is  competent,  but  does  not  state  the  facts  which 
he  finds  to  be  proved,  this  court  cannot  see  whether  his  decision 
as  to  competency  of  the  witness  was  right  or  not,  and  it  will  on 
that  account  order  a  venire  de  novo.  State  v.  Norton,  1  Winst., 
303. 

See  (Practice — In  the  supreme  court,  79.) 


9M    NOLLE  PROSEQUI  AND  NONSUIT— NUISANCE: 


NOLLE  PROSEQUI  AND  NONSUIT. 

See  (Practice — Nonsuit  and  Nolle  prosequi,)  (Indictment — 
Effect  of  a  nolle  prosequi,)  (Indictment — 01  the  trial,  verdict 
and  judgment,  24-25-55.) 


NUISANCE., 

1.  For  any  of  those  acts  which  are  in  the  nature  of  a  public 
nuisance,  no  individual  is  entitled  to  an  action,  unless  he  has  re- 
ceived an  extraordinary  and  particular  damage  not  common 
to  the  rest  of  the  citizens.     Dunn  v.  Stone,  2  Car.,   L.  Pt.   261 

2.  To  render  an  act  indictable  as  a  nuisance,  it  is  necessary 
that  it  should  be  an  act  so  inconvenient  and  troublesome  as  to 
annoy  the  whole  community,  and  not  merely  particular  persons.. 
Therefore,  where  it  was  charged  that  the  defendants  assembled 
at  a  public  place,  and  profanely  and  with  a  loud  voice,  cursed, 
swore  and  quarelled  in  the  hearing  of  divers  persons,  then  and 
there  assembled  whereby  a  certain  singing  school  was  broken 
up  and  disturbed  "to  the  common  nuisanca,"  &c  ,  itivasheld., 
that  the  indictment  could  not  be  sustained  as  one  for  a  common 
nuisance.     State  v.  Baldivin,  1  Dev.  and  Bat.,  195. 

3.  A  stable  in  a  town  is  not,  like  a  slaughter  pen  or  a  hog 
stj^e,  necessarily,  or  prima  facie,  a  nuisance.  But  if  it  be  so 
built,  so  kept  or  so  used,  as  to  destroy  the  comfort  of  persons 
owning  and  occupying  adjoining  premises,  and  impairing  their 
value  as  places  of  habitation,  it  becomes  thereby  a  nuisance. 
Dargan  v.  JVaddill,  9  Ired.  244. 

4.  If  the  adjacent  proprietors  be  annoyed  by  it  in  any  manner 
which  could  be  avoided,  the  stable  becomes  an  actionable  nuis- 
ance, though  it  be  in  itself  a  convenient  and  lawful  erection. 
Ibid. 

5.  Upon  a  charge  for  keeping  a  disorderly  house,  it  appeared 
that  the  defendant  lived  in  the  country,  remote  from  a  public 
road,  and  that  loud  noises  and  proftme  swearing  were  often  kept 
up  by  his  live  sons,  whom  he  did  not  encourage,  save  by  his  bad 
example  in  getting  drunk  himself,  but  sometimes  endeavored  to 
keep  them  quiet,  by  which  disorder,  only  two  families  in  a  thick- 
ly settled  neighborhood,  were  disturbed;  it  was  held,  not  to 
amount  to  a  common  nuisance.     State  v.  Wright,  6  Jones,  25. 


NUISANCE— OFFICERS  AND  OFFICES.  935 

dictment — 
(Indictmen 
78-79-82-140-141.) 


See  (Indictment— In  what  cases  an  indictment  will  lie,  10-14 
-16-68,)  (Indictment— Form  and  matters  relating  thereto,  30- 


OFFICERS  AND  OFFICES. 

1.  It  is  the  dnty  of  public  officers  who  are  paid  for  their  ser- 
vices, to  inrnish  blanks  to  be  executed  by  individuals  who  Iiave 
business  to  transact  with  them  in  their  official  characters.  Mann 
V.  Vick,  1  Hawks,  427. 

2.  An  office  is  the  property  of  the  incumbent.  Hoke  v.  Hen- 
derson, 4  Dev.  1. 

3.  In  the  absence  of  constitutional  restriction,  the  creation, 
continuance,  duties  and  emoluments  of  an  office,  are  matters  of 
political  expediency,  and  to  be  juda^ed  ot  solely  by  the  leo:isla- 
ture.  But  it  cannot  continue  an  office,  and  oust  the  incumbent 
or  lessen  the  tenure  of  his  office,  oi  transfer  his  right  to  another. 
Ibid. 

4.  Offices,  that  are  only  political  agencies,  may  be  vacated  at 
any  time;  those  to  which  a  personal  interest  is  attached,  can 
only  be  vacated  upon  conviction  for  a  default.     Ibid. 

5.  Offices  are  held  at  the  will  of  both  parties,  and  though  an 
officer  may  resign,  yet,  if  his  resignation  be  not  accepted,  it  is 
nothing,  and  he  still  remains  in  office.     Ibid. 

6.  A  person  wlio  undertakes  an  office,  and  is  in  office  de  facto, 
although  not  legally  appointed  thereto,  is  bound  to  perform  all 
the  duties,  and  is  liable  for  their  omission,  in  the  same  manner, 
as  if  the  appointment  were  strictly  legal,  and  his  right  perfect. 
State  Y.  McEi.tire,  3  Ired.,  171. 

7.  The  acts  of  officers  de  facio  are  as  effectual,  so  faras  the 
rights  of  third  persons  or  the  public  are  concerned,  as  if  they 
were  officers  de  Jure.     Burke  v.  Elliotf,  4  Ired.,  355. 

8.  What  shall  constitute  an  officer  defado  may  admit  of  doubt 
in  different  cases.  The  mere  assumption  of  the  office  by  per- 
forming one  or  even  several  acts  appropriate  to  it,  without  any 
recognition  of  the  officer  by  the  appointing  power,  may  not  be 
sufficient  to  constitute  him  an  officer  de  facto.  There  must  at 
least  be  some  colorable  election  and  induction  into  office  ah 
origine,  and  some  action  thereunder,  or  so  long  an  exercise  of 
the  office  and  af;quiescence  therein  of  the  public  authorities,  ag 
to  afford  to  an  individual  cirizen  a  strong  presumption,  that  the 
party  was  duly  appointed,  and  therefore,  that  every  person  might 
compel  him  for  the  legal  fees,  to  do  his  business,  and  for  the 


93(J  OFFICERS  AND  OFFICES. 

same  reason  was  bound  to  submit  to  his  authority,  as  the  officer 
of  the  country.     Ihid. 

9.  The  acts  of  officers  de  facto  acting  openly  and  notoriously 
in  the  exercise  of  the  office  for  a  considerable  time,  must  be  held 
as  eftectual  when  they  concern  the  rights  of  third  persons  or  the 
public,  as  if  they  were  the  acts  of  rightful  officers.  Gilliam  v. 
Reddiek,  4  Ired.,  368. 

10.  Where  one  has  been  appointed  a  coroner  of  a  county, 
though  it  may  appear  that  he  has  not  renewed  his  official  bonds 
as  required  by  law,  yet  his  acts  as  coroner  de  facto,  are  valid,  at 
leagt  as  regards  third  persons.     Mabry  v.  Turrentine,  8  Ired.,  201. 

11.  The  Revised  Code,  ch.  78,  sec.  5,  gives  a  summary  remedy 
against  public  officers  only  to  creditors  and  others  who  are  en- 
titled to  the  money  in  the  hands  of  the  officer,  so  that  a  new 
clerk  cannot  proceed  under  it  against  a  former  clerk,  for  not 
paying  over  office  money  to  him  as  his  successor.  O'Leary  v. 
Harrison,  6  Jones,  338. 

12.  Persons  entering  into  office  under  color  of  an  irregular 
election,  are  thereby  constituted  officers  de  facto,  and  their  offi- 
cial acts  have  full  force  until  they  are  removed  by  a  writ  of  quo 
warrardo.     Commissioners  of  Trenton  v.  McDaniel,  7  Jones,  107. 

13.  While  an  office  continues,  the  legislature  cannot  oust  an 
incumbent  during  the  term  for  which  he  has  been  chosen.  Cot- 
ten  V.  Ellis,  7  J  ones,  ij45. 

14.  The  legislature  may  increase  or  reduce  the  salaries  of  all 
such  officers  as  are  not  protected  by  the  constitution  during  their 
term  of  office,  but  it  cannot  deprive  them  of  the  whole  salarv. 
Ibid. 

15.  The  acts  of  one  ptn^porting  to  be  an  officer,  are  evidence 
of  his  authority,  and  such  acts,  as  to  third  persons,  are  to  be 
taken  as  valid,  while  the  incumbent  is  thus  acting.     Swindle  v. 

Warden,  7  Jones,  575. 

16.  The  office  of  brigadier  general  luider  the  Confederate  States 
was  held  to  be  incompatible  with  that  of  adjutant  general  of  the 
State  of  North-Carolina,  and  the  acceptanve  of  the  former  office 
was  held  to  vacate  the  latter  which  was  held  at  the  time  of  such 
acceptance.  In  the  mcdter  of  General  J.  G.  Blartin,  1  VVinst.,  153, 
in  the  appendix. 

See  (Constitution — Construction  of  various  clauses  of  the  con- 
stitution, 19.)  (Indictment — In  what  cases  an  indictment  will 
lie,  7-8-37-42-83-89.)  (Indictment — Form  and  matters  relating 
thereto,  84-97-153.)  '  (Indictment — Of  the  trial,  verdict  anct 
judgment,  5.) 


OVERSEERS.  937 


OVERSEERS. 

1.  The  forfeiture  upon  an  overseer  by  the  act  of  1741  for  leav- 
ing his  employer's  service  during  the  time  for  which  he  was  em- 
ployed, does  not  attach  to  a  case,  where  by  the  stipulation  of  the 
parties,  the  overseer  may  leave,  or  the  employer  may  discharge 
him,  at  pleasure.  iSteed  v.  3IcRae,  1  Dev.  and  Bat.,  435.  (See 
Rev.  Code,  ch.  80.) 

2.  A  ccntract  for  service  as  an  overseer,  in  which  it  is  stipula- 
ted that  the  overseer  may  leave  his  employer's  service,  or  his 
employer  may  discharge  him,  at  pleasure,  will  be  constraed  so 
as  to  give  the  overseer  a  pro  rata  compensation  during  the  time 
he  may  serve.     Ibid. 

3.  An  overseer  is  not  strictly  a  bailee,  though  many  of  the 
principles  of  that  relation,  and  many  of  its  duties  attach  to  him. 
It  is  his  duty  to  take  such  care  of  the  property  entrusted  to  him, 
as  a  man  of  ordinary  prudence  would  take  of  his  own  property. 
Smifh  V.  Cameron,  11  Ired.,  572. 

4.  Where  an  overseer  was  employed  for  a  year  and  served  du- 
ring that  time,  it  was  held,  in  a  suit  for  stipidated  wag-es,  that  the 
employer  was  not  at  liberty  to  show  that  the  plaintiff  was  lazy 
and  trifling  and  had  made  a  poor  crop.  Hohbi  v.  Reddick,  5 
flones.  80. 

5.  Where  an  overseer  was  employed  upon  a  special  contract 
by  the  year,  and  was  turned  off  by  his  employer  daring  the  vear 
without  sufficient  cause,  and  afterwards  sought  and  obtained  oth- 
er employment  during  the  same  year,  it  ivas  Jield,  in  an  action  to 
recover  the  full  price  from  the  employer,  that  Avhat  the  overseer 
had  made  by  other  employment  during  the  year  ought  properly 
to  be  allowed  in  mitigation  of  damages.  Hendrickson  v.  Ander- 
son, 5  fJones,  24G. 

G.  Whether  the  misconduct  complained  of  by  an  employer 
against  his  overseer  was  a  sufficient  cause  for  dismissing  him,  is 
a  question  of  law  for  the  court.     Ibid. 

7.  An  overseer  cannot  maintain  an  action  for  his  wages  if  ho 
misconducts  himself  in  such  a  manner  as  to  justify  his  employer 
in  dismissing  him;  and  it  will  be  such  misconduct  for  him  to 
frequent  grogshops  in  his  neighborhood  during  the  hours  of  the 
day  when  he  ought  to  be  attending  to  the  Ijusiness  of  his  em- 
ployer.    Fly  V.  Armstronr/,  5  Jones,  339. 

8.  It  is  a  good  ground  for  discharging  an  overseer  that  he 
assumed  to  control  the  slaves  under  liis  care,  against  the  known 
wishes  and  positive  commands  of  his  employer.  Lane  v.  Phil- 
lips, 0  .Tones,  455. 

9.  Where  an  overseer  acts  so  badly  as  to  compel  his  employer 
to  dismiss  him  before  the  end  of  the  time  for  which  he  contrac- 


938    OVEESEERS— OVERSEERS  OF  ROADS— PARDON. 

ted  to  serve,  he  cannot  recover  any  thing  for  services  rendered 
previous  to  sucii  discharge.     Ibid. 

10.  Where  an  overseer  was  discharged  for  good  cause,  and  the 
employer  offered  to  pay  him  pro  rata  for  the  time  he  had  served,, 
which  he  refused  to  take,  he  cannot  recover  the  amount  thus 
tendered  afterwards.     Ibid. 


OVERSEERS  OF  ROADS. 

See  (Highway,  3-4-17-20-31-33-39-44.) 


PARDON. 

The  Governor  cannot,  under  the  constitution,  add  to  or  com- 
mute a  punishment;  but  under  the  pardoning  power,  he  may 
remit  a  part  of  the  fine.     Staie  v.  Ticitty,  4  Hawks,  193. 

2.  Wlierc  it  appears  from  the  record  of  the  court,  and  from  the 
pardon  itseH',  that  it  was  obtained  upon  false  suggestions,  it  is 
void,  and  may  be  so  treated  by  the  ccjurt.  State  v.  31clntire,  1 
Jones,  1. 

3.  When  it  appears  from  the  pardon  itself,  that  the  Governor 
thought  the  defendant  had  been  sentenced  to  pay  a  fine,  as  well 
as  to  be  imprisoned,  and  the  imprisonment  is  remitted  upon  con- 
dition that  the  fine  be  paid,. when  in  fact  there  is  no  fine,,  the 
pardon  is  void.     Ibid. 

4.  Tlie  Governor  may  pardon  a  portion  of  the  punishment  after 
it  is  fixed  by  the  judgment;  but  it  is  questionable  whether  he 
can  pardon  a  portion  of  the  supposed  punishment,  where  it  is 
discretionary,  before  it  is  fixed  by  the  judgment.     Ibid. 

5.  Thongh  the  pardoning  power  is  undoubtedly  general,  yet 
if  the  punishment  be  at  the  discretion  of  the  presiding  judge, 
the  presumption  is  that  it  will  only  be  exercisesed  in  extreme 
cases.     Ibid. 

6.  It  seems  that  the  statute  pardon,  which  is  incident  to  the 
benefit  of  clergy,  does  not  take  efiect  until  the  party  is  burned 
in  the  hand  and  delivered  out  of  prison.  If  the  record  of  the 
court  omit  to  show  the  execution  of  the  sentence,  the  party 
claiming  the  benefit  of  such  pardon,  may  show  it  by  a  witness. 
Keith  V.  Goodwin,  6  Jones,  398. 


PARDON— PARTIES.  939 

(The  benefit  of  clergy,  with  all  its  incidents,  is  now  abolished. 
See  Rev.  Code,  ch.  34,  sec.  22  and  23.) 


PARTIES. 

1.  It  is  not  error  to  refuse  to  dismiss  a  case  on  motion  for  want 
of  parties,  thong-h  it  may  be  error  to  decree  finally  without  them. 
Morrison  v.  McEIrafh,  4'^Dev.  and  Bat.,  474. 

2.  Where  a  paper  under  which  a  plaintiff  in  a  petition  claims 
to  be  an  assignee,  does  not  on  its  face  purport  to  be  an  assign- 
ment, but  only  an  order  for  money,  it  is  necessary  that  the 
alleged  assignor  or  his  personal  representative  should  be  a  party 
to  the  petition,  either  plaintiff  or  defendant.  Clark  v.  EdnevS^ 
Ired.,  50.  ^ 

3.  On  a  petition  against  administrators  for  a  distributive 
share  of  an  estate,  all  persons  entitled  to  distribution  should  be 
made  parties.     Ihid. 

4.  The  plaintifis  sued  out  a  writ  against  a  defendant,  which  was 
returned _ 'I «o«,  est  inventus"  and  it  luas  held  that  they  might 
m  then-  joint  names  sustain  an  action  for  a  ftilse  return,  both 

T^  ^"^o™^^*''  "^  ^^  ^^®  parties  grieved.     Houser  v.  Hampton,  7 
Ired.,  333. 

_  5.  Where  money  has  been  paid  into  a  clerk's  office  upon  a 
judgment,  and  the  judgment  is  assigned,  or  the  attorney's  receipt 
for  the  note  on  which  the  judgment  Avas  obtained 'has  been 
transferred,  by  the  plaintiff"  in  the  judgment  to  a  third  person, 
such  assignee  has  no  right  to  sue  the  clerk  for  the  money  in  his 
own  name,  as  he  had  but  an  equitable  interest.  Slate  v.  Miller 
11  Ired.,  235.  ' 

6.  Where  a  debtor  delivered  to  his  creditor,  without  endorse- 
ment, a  bond  on  a  third  person  as  collateral  security,  with  an 
agreement  that  it  should  be  returned  if  not  collected,  and  the 
creditor  hiinded  it  to  a  constable  for  collection  and  took  from 
mm  a  receipt  as  for  himself,  it  was  held  in  a  suit  on  the  consta- 
bles oflicial  bond  for  a  default  in  not  collecting,  that  the  creditor 
was  the  proper  person  to  be  made  relator.  Chipleu  v.  Aired,  8 
Jones,  204.  "^ 

See  (Partnership— What  constitutes  a  partnership,  &c.,  7-19  ) 
(Penal  Statutes,  17.)  (Pleading— Of  the  writ  and  declaration, 
30-21-3G. ) 


940  PAETITIOK 


PARFITION. 

1.  Where  there  was  a  devise  of  three  lots  to  A,  B,  C,  and  A 
died,  whereby  his  lot  descended  to  B,  Avho  sold  two  of  the  lots, 
leavin^^  the  third,  lield  to  be  evidence  of  a  partition  and  that  the 
third  was  assigned  toG.  Slade  v.  Orecn,  2  Hay.,  75,  (242,)  S.  C 
Tay.,  Ill,  ((36.) 

2.  To  render  a  partition  among  co-heirs  under  an  order  of  the 
connty  court,  valid,  it  must  appear  that  a  petition  was  filed,  that 
all  the  heirs  were  represented,  that  the  commissioners  were 
sworn,  and  that  they  returiied  their  proceedings  under  their 
hands  and  seals ;  and  a  partition  made  without  these  requisites, 
is  not  validated  by  the  assent  of  the  heirs  at  the  time,  nor  by 
their  subsequent  acquiescence.     Anders  v.  Anders.  2  iJev.,  529. 

3.  A  partition  cannot  be  made  by  tenants  in  coinmon  by  parol. 
McPherson  v.  Sequine,  3  Dev.,  153. 

4.  A  proceeding  for  partition  at  law  cannot  take  place  unless 
there  be  a  common  possession;  and  a  common  possession  is 
always  implied  from  a  common  title,  until  the  contrary  be  shown. 
But  if  an  actual  ouster  of  one  tenant  in  common  be  made  by  his 
co-tenant,  there  is  no  longer  a  common  possession,  and  the  rem- 
edy is  not  by  a  petition  for  partition,  but  by  ejectment.  Thomo,s 
v.  Garvan,  4  Dev.,  323. 

5.  The  report  of  commissioners  appointed  to  divide  the  lands 
of  intestates,  under  the  acts  of  1787  and  1801,  will  be  presumed 
to  be  correct  and  be  conlirmed,  although  one  dividend  of  land 
be  nearly  double,  and  another  not  half  the  average  value  of  the 
shares,  unless  something  improper  appears  on  the  face  of  the 
return,  or  is  shown  by  extrinsic  proof  Nicelar  v.  Barhrick,  1 
Dev.  and  Bat.,  257.     (See  Kev.  Code,  ch.  82,  sees.  1  and  3.) 

().  A  judgment  merely  that  the  report  ot  commissioners  to 
divide  land  "be  confirmed,"  without  ordering  it  to  be  recorded, 
and  giving  judgment  for  the  costs,  it  seems,  is  an  interlocutory 
and  not  a  final  judgment.     Ibid. 

7.  Where  slaves  on  the  petition  of  the  owners  have  been  or- 
dered to  be  sold  for  a  division,  a  person  who  was  no  party  to  the 
petition,  but  claimed  by  a  lien  under  an  execution  against  one 
of  the  petitioners  before  the  sale,  has  no  right  to  apply  to  the 
court  to  have  the  share  of  such  petitioner  in  the  proceeds  paid 
over  to  him.     In  flie  matter  of  Harding,  3  Ired.,  320. 

8.  Where  a  petition  was  filed  in  the  county  court  for  the  par- 
tition of  slaves  among  tenants  in  common,  an  order  was  made 
and  the  commissioners  made  a  division  and  a  return  of  their  re- 
port, which  was  confirmed,  assigning  to  the  agent  of  one  of  the 
petitioners  a  certain  number  of  slaves,  and  also  a  sum  of  money 
to  be  paid  to  him  as  agent  by  another  of  tlie  petitioners  for 
equality  of  partition;  no  formal  decree,  however  was  drawn, 


PARTITION.  941 

and  it  tvas  held,  that  the  agent  could  not,  by  a  notice  in  his  own 
name,  call  upon  the  other  petitioners  to  have  the  decree  entered 
in  his  favor,  or  to  pay  the  sum  so  awarded.  Irwin  v.  King,  fi 
Ired,,  219. 

9.  The  act  of  1829  for  the  partition  of  slaves  or  other  personal 
chattels  applies  only  to  a  plain  legal  tenancy  in  common,  and 
not  at  all  to  a  suit  against  an  executor  for  negroes,  as  part  of  a 
legacy  to  two  or  more  persons  in  common.  In  the  latter  case 
the  rights  cannot  be  ascertained  until  the  administration  has 
been  closed,  or  all  the  accounts  liave  been  taken,  and  the  execu- 
tor is  proceeded  against  in  his  character  of  a  trustee  for  the  le- 
gatees.    Amis  V.  Amis,  7  Ired.,  219.     (See  Rev,  Code,  ch.  82,  sec. 

10.  The  law  gives  to  tenants  in  common  an  absolute  right  to 
have  their  land  divided;  and  the  decree  for  partition  should 
show  on  its  face,  the  particular  land  to  be  divided,  and  the  por- 
tion or  share  of  the  land  to  which  each  of  the  tenants  is  enti- 
tled. Ledbetter  v.  Gash,  8  Ired.,  4G2.  (See  Rev.  Code,  ch.  82, 
sec.  1.) 

11.  On  a  petition  for  the  partition  of  slaves,  where  the  de- 
fendant denies  the  petitioners  right,  and  insists  that  he,  the  de- 
fendant, is  entitled  to  the  slaves  in  severalty,  it  is  not  necessary 
for  the  petitioner,  as  in  the  case  of  a  petition  for  the  partition  of 
land,  to  establish  his  right  at  law,  before  the  relief  he  seeks,  can 
be  granted.  The  court  in  which  the  petition  is  filed  must  decide 
the  question  of  right.     Edwards  v.  Bennett,  10  Ired.,  3i51. 

12.  Property  held  by  partners  in  a  iirm,  is  not  tlie  suljject  of  a 
proceeding  for  partition  under  the  act  of  1829,  Rev.  Stat,  ch. 
85,  sec,  18,  whether  the  proceeding  be  by  the  partners  or  their 
assignees — such  cases  can  oidy  be  properly  dealt  with  in  a  court 
of  equity.  Flanner  v.  Moore,  2  Jones,  120.  (See  Rev.  Code,  ch. 
82,  sec.  17  and  18.) 

13.  A  dissolution  of  the  co-partnership  without  a  settlement 
of  its  affairs,  does  not  convert  the  members  uf  tlie  firm,  or  the 
purchasers  of  the  partnership  effects  mider  them,  into  tenants 
in  common  so  as  to  authorize  a  proceeding  for  a  partition  under 
the  act.     Ihid. 

14.  In  a  petition  filed  in  a  court  of  law  for  ]')artition  of  land, 
where  the  defendant  denies  tiie  tenancy  in  common  by  a  plea  of 
"  Bt)le  seizin  in  himself,"  the  court  of  law  will  itself  try  the  ques- 
tion of  title  thus  raised,  as  an  action  of  ejectment  need  not  be 
brought  except  when  it  is  ordered  by  a  court  of  equity,  when  the 
title  is  disputed  in  a  proceeding  for  partition  in  that  court.  Pur- 
vis v.  Wilson,  5  Jones,  22. 

15.  Where,  on  a  petition  for  tlie  partition  of  slaves,  the  county 
court  ordered  that  ])artition  sliould  be  made  in  certain  proportion, 
and  appointed  commissioners  to  make  it  accordingly,  and  on 
appeal  to  the  superior  court,  the  order  was  lo versed,  and  the 


^42  PAETITION— PARTNERSHIP— I. 

division  directed  to  be  made  in  a  different  proportion,  it  was  held 
that  the  superior  court  was  not  in  possession  of  the  whole  case 
by  the  appeal,  and  that  a  procedendo  to  the  county  court  was 
proper.     MUlsaps  v.  McLean,  1  Winst.,  80. 

See  )Coutempt,  9.)  (Estoppel— By  matter  of  record,  2-3-4-,^ 
-10-15-16.)  (Evidence— Parol  evidence,  when  admissible  or 
not,  49.)  (Evidence— Ilecords  of  courts;  the  proof  and  effect  of 
them,  21-22-23.)     (Tenants  in  common,  3-17-30.) 


PARTNERSHTP. 


L  What  constitutes  a  partnership  and 
its  effect  upon  tlie  partners  and 


II.  Of  the  dissohilion  of  a  partnership, 
III.  Of  the  sale  and  purchase  of  partner' 


others.  ship  effects. 

I.        WHAT     CONSTITUTES    A    PARTNERSHIP,     AND    ITS     EFFECTS    UPON     THE 
PARTNERS    AND    OTHERS. 

1.  General  reputation  is  not  sufficient  to  charge  a  particular 
person  as  a  partner ;  there  must  be  some  confession  of  his,  or 
some  overt  act  to  prove  it.     Hunt  v.  Jucks^  1  Hay.,  173,  (199.; 

2.  If  an  assignor  and  assignee  be  members  of  the  same  firm, 
and  the  paper  payable  to  the  assignor  is  expressed  on  its  face  to 
be  for  a  debt  due  to  the  firm,  a  payment  to  any  member  of  the 
firm  will  be  a  good  payment  against  either  the  assignor  or 
assignee.     Black  v.  Blrd^  1  Hay.,  273,  (315.) 

3.  One  partner  may  release  his  interest  by  endorsement  on  a 
partnership  note  to  his  co-partner,  so  as  to  enable  the  latter  to 
sue  on  the  note  in  his  own  name.  Siieed  v.  Mitchell,  1  Hay , 
289,  (334.) 

4.  One  partner  may  bind  the  |irmby  a  bond  under  seal,  signed 
by  himself  in  the  name  of  himself  and  his  co-partner.  Walkf^r 
v.  Dickermn,  2  Hay.,  23,  (178.)  Overruled,  see  Anonymous,  2 
Hay.,  99,  (2G0,)  S.  C.  Tay.,  113,  (67.) 

5.  One  partner  cannot  bind  another  by  deed  or  bond,  unless  he 
cither  has  an  express  power  to  do  so  under  seal,  or  the  other  be 
present  and  assent  to  the  act.  But  this  assent  may  be  implied 
by  circumstances,  and,  when  implied,  has  the  same  effect  as  the 
most  express  assent.     Person  v.  Carter^  3  Murph.,  321. 

6.  If  the  partner  who  has  not  executed  the  bond,  not  only 
recognizes  it  as  the  bond  of  the- firm,  but  knowingly  takes  ben- 
efit of  the  effect  of  the  contract,  and  assents  to  the  extinguish- 
ment of  a  partnership  debt  by  the  funds  arising  therefrom;  he 


PARTNERSHIP— 1.  943 

shall  also  take  the  burthen,  and  do  the  same  tliing  as  if  he  had 
personally  transacted  the  business.     Ibid. 

7.  In  an  action  of  assumpsit  against  a  carrier  for  damage  to 
goods,  a  dormant  partner  need  not  join.  Willxs  v.  Clark,  I 
Dev.,  178. 

8.  An  agreement  between  the  owner  of  a  vessel  and  the  cap- 
tain that  each  party  shoidd  pay  certain  expenses  and  divide  the 
freight,  with  a  power  to  the  captain  to  invest  it  on  joint  account, 
constitutes  a  co-partnership.      (Jox  v.  Delano,  o  Dev.,  89. 

9.  One  who  receives  a  portion  of  the  protits,  as  his  property,  is 
a  partner ;  but  it  is  otherwise  if  the  amount  of  profits  is  referred 
to  only  to  ascertain  the  amount  of  a  debt  due  him.     Ihid. 

10.  On  an  attachment  against  one  partner  for  his  separate 
debt,  only  the  separate  property  of  that  partner  can  be  seized, 
the  partnership  effects  cannot  be  taken.  Jariyis  v.  Hytr,  4  Dev., 
367. 

11.  Partners  are  joint  tenants  of  their  debts  and  merchandize, 
but  the  jus  accresccndi  only  holds  to  e*nable  the  surviving  part- 
tier  to  get  in  the  debts  and  settle  the  affairs  of  the  firm.     Ihid. 

12.  Where  a  partner  executed  a  bond  for  goods  sold  to  the 
firm,  in  the  name  of  the  firm,  and,  upon  being  informed  it  did 
not  bind  his  partners,  took  it  back,  and  with  the  consent  of  the 
obligee  removed  the  seal  and  re-delivered  it  with  the  intent  to 
bind  the  company,  it  is  effectual  as  their  promissory  note.  Hc/r- 
ton  V.  Clrild,  4  Dev.,  460. 

13.  The  simple  contract  debt  of  a  partnership  is  not  merged 
by  the  several  bond  of  one  partner.     Ihid. 

14.  If  one  partner  borrow  m(mey  upon  his  own  credit,  and 
gives  his  own  separate  security  and  obligation  for  the  amount, 
tfie  other  partners  will  not  be  responsible  for  it,  although  it  was 
applied  to  the  use  of  the  firm.  Willis  v.  Bill,  2  Dev.  and  Bat., 
231. 

15.  A  partnership  security,  taken  for  the  debt  of  one  of  the 
partners,  without  evidence  of  the  assent  of  the  others,  is  void  at 
lav/.      Weexl  v.  BicJiardson,  2  Dev.  and  Bat.,  535. 

16.  A  resposibihty  incurred  upon  a  request  made  by  one  pro- 
fosstdlij  in   behalf  of  himself  and  his  co-partner,  in  relation  to 

their  common  business,  but  in  truth  for  his  individual  benefit,  is. 
in  law,  incurred  at  the  request  of  both.  Hence,  where  a  person 
became  surety  to  a  bond,  given  to  sectn-e  money  borrowed  by 
one  partner  professedly  for  the  firm,  and  so  understood  by  the 
lender  and  the  surety,  but  in  truth  for  the  individual  use  of  the 
Ijorrower,  it  ivas  held,  that  though  the  creditor  could  not  recover 
the  mfmey  from  the  firm,  for  want  of  authority  in  the  partner 
to  bind  the  firm  by  deed,  yet  the  surety  upon  paying  the  l)ond 
even  voluntarily  and  without  suit,  might  recover  the  amount 
from  the  firm.      Wharton  v.  Woodhitrn,  4  Dev.  and  Bat.  507. 

17.  Although  one  partner  cannot  bind  his  co-partner  by  deed, 


944  PARTNERSHIP— I. 

for  a  loan  effected  in  the  name  of  the  firm,  unless  he  have  ex- 
press authorty  by  deed  for  that  purpose ;  yet  in  equity,  if  it  can 
be  shown  that  the  loan  was  in  behalf  of  both  the  partners,  and 
that  the  security  was  by  the  contract  intended  to  be  one  binding 
both  the  partners,  but  through  mistake  had  been  so  executed  as 
to  bind  one  only,  it  seems  that  the  creditor  may  have  relief 
against  both.      Ibid. 

IS.  If  one  of  two  partners  purchase  goods  ostensibly  for  the 
partnership  concern,  but  in  truth  for  himself,  or  borrow  money 
for  the  firm  but  misapply  it,  the  firm  is  bound.     Ibid. 

19.  An  agreement  between  two  persons  to  carry  on  a  trade 
upon  the  terms  that  one  of  them  is  to  contribute  his  labor  and 
the  other  to  furnish  all  the  materials  necessary  for  the  business, 
and  to  supply  the  laborer  with  provisions  for  himself  and  his 
family;  and  that  out  of  the  profits  of  the  business,  the  materials 
and  ]}rovisions  are  first  to  be  paid  for,  and  then  the  balance  of 
the  profits,  if  any,  to  be  eqimlly  divided  between  the  parties, 
constitutes  them  pai'tnei's,*  and  renders  the  laborer  a  necessary 
party  in  a  suit  brouglit  for  work  and  labor  done  in  the  cause  of 
the  business,  although  previous  to  bringing  the  suit,  the  parties 
may  have  dissolved  the  partnership,  and  separated  before  enough 
of  profits  were  realized  to  pay  for  the  materials  and  provisions; 
and  the  laborer  may  have  left  indebted  to  the  other  for  the  pro- 
visions furnished  to  his  family.     Holt  v.  liernodJe,  1  Ired.,  199. 

20.  It  is  fraiululent  to  receive  from  one  partner,  for  his  own 
separate  debt,  the  security  of  the  firm,  unless  he  has  authority 
from  the  other  partner  to  that  effect,  or  unless  the  creditor  has 
reasonable  and  probable  cause,  from  the  conduct  of  the  firm,  to 
believe  that  such  authority  has  been  given.  3IiU(r  v.  liichard- 
son,  2  Ired.,  250. 

21.  One  partner  cannot  bind  his  co-partner  by  a  contract,  un- 
less it  is  in  some  way  connected  with  the  partnership  business, 
or  unless  the  act  be  adopted  and  recognized  by  the  co-partner, 
or  unless  it  be  a  bill  or  the  endorsement  of  a  note,  which  the 
party  takiiig  it  had  good  reason  tt)  believe  was  authorized  by  the 
firm.     L(»tg  v.  Carter,  3  Ii'ed.,  238. 

22.  Before  one  partner,  or  his  representative,  can  sue  another 
partner  at  law,  the  settlement  of  the  firm  must  be  complete  and 
a  balance  struck.      Grahcon  v.  Bolt,  3  Ired.,  300. 

23.  Where  a  vendor,  before  he  sells  to  a  partner,  has  notice 
that  there  is  a  partnership,  but  that  each  partner  is  to  be  liable 
only  for  his  own  purchases,  the  vendor  caniiot  look  to  the  part- 
nership for  payment,  but  can  have  recourse  only  against  the 
partner  purchasing.  r>ut  Avhere  the  vendor  is  informed  that 
there  is  no  partnership  existing,  he  may,  upon  discovering  the 
partnership,  make  all  the  partners  responsible  for  goods  which 
lie  has  sold  to  any  one,  and  which  have  been  carried  into  the 
co-partnership  concern.     Baxter  v.  Clarli,  4  Ired.,  127. 


PAETNERSHIP— I.  945 

24.  Oiie  partrer  made  an  advance  of  $808  to  the  firm,  and 
took  a  memorandum  therefor  in  the  shape  of  a  note  signed  by 
the  other  partner  and  payable  to  the  first.  Afterwards  the  firrn 
was  dissolved,  and  no  actual  account  of  the  partnership  being 
taken,  the  partner,  who  had  made  this  advance,  agreed  to  take  a 
certain  amount  as  his  share,  and  the  other  partner  was  to  take  all 
the  remainder  of  the  effects  of  the  firm,  and  also  "to  pay  all  the 
debts  of  the  firm."  It  wan  held  that,  by  this  settlement,  the  part- 
ner Avho  made  the  advance  w^as  precluded  from  claiming  the  sum 
advanced  as  one  of  "  the  debts  of  the  firm."  Patterson  v.  3Iar- 
tin,  6  Ired.,  111. 

25.  A  contract  was  made  with  two  partners  for  the  keeping  of 
certain  horses.  Afterwards  one  of  the  partners  died  and  the 
survivor  gave  his  note  for  the  amount  due  on  the  contract,  which, 
not  being  paid,  was  tendered  back  to  the  surviving  partner: 
and  it  icas  held  that  the  original  cause  of  action  was  not  merged. 
and  tliat  suit  might  be  brought  against  the  representative  ot  the 
deceased  partner  to  recover  damages  for  the  breach  of  the  con- 
tract.    Jlebane  v.  Spencer,  6  Ired.,  423. 

26.  Where  a  boy  was  bound  by  his  father  as  an  apprentice  to 
a  copartnership,  to  be  taught  a  mechanical  trade,  and  the  father 
took  away  the  boy  before  his  time  had  expired,  and  soon  after- 
wards the  copartnership  was  dissolved,  the  period  of  apprentice- 
ship being  still  unexpired,  it  ivas  heldhj  a  majority  of  the  court 
(RuFFiN,  C.  J.  caV^e??f/e7^i'e)  that  the  persons  comj^osing  the  copart- 
nership could  only  recover  damages  tor  the  loss  of  the  boy's 
services  during  the  time  the  copartnership  continued,  and  not 
afterwards.     Watt  v.  Gilmer,  6  Ired.,  450. 

27.  If  one  partner  purchase  goods,  ostensibly  for  the  firm,  but 
in  truth  for  himself,  the  firm  is  bound  in  the  same  manner  it 
would  be  if  the  partner  had  borrowed  money  for  the  firm  and 
misapplied  it.     Dickson  v.  Alexander,  7  Ired.,  4. 

28.  Where  two  partners  entered  into  a  covenant  that  one  of 
them  should  receive  a  salary  for  managing  the  business,  it  ivas 
held  that  the  salary  must  be  paid  out  of  the  partnership  funds. 
Shaver  v.  Upton,  7  Ired.,  458. 

2y.  Where  a  partnership  was  about  to  be  formed,  and  one, 
who  was  to  be  a  member,  purchased  a  chattel,  whioh  was  after- 
wards used  by  the  firm,  and  agreed  by  them  to  be  taken  from 
liim  upon  his  retiring  from  the  business,  and  the  note  he  gave 
for  the  chattel  was,  in  consequence  of  this  agreement,  surren- 
dered to  him,  it  icas  held  tliat  the  other  partners  were  bound  to 
pay  tlie  original   seller.     Shaver  v.  Adams,  lO  Ired.,  13. 

30.  The  declaration  of  a  partner,  after  the  purchase  of  an  ar- 
ticle, that  he  had  purchased  it  for  and  on  account  of  the  firm,  is 
not  of  itself  sufficient  evidence  to  make  his  co-partners  liable 
White  V.  Gibson,  11  Ired.,  283. 

31.  A  promissory  not( ,  given  by  one  of  the  partners  of  a  firm 

18* 


946  PAETiN"ERSHlP-l. 

in  the  partnership  name,  binds  all  the  partners,  unless  the  per-^ 
son  who  takes  it  knows,  or  has  reason  to  believe,  that  the  part-* 
ner  who  made  it  was  improperly  using-  his  authority  for  his  own 
benefit,  to  the  prejudice  of  the  other  partners.  Ahpt  v.  Miller^  5 
■Jones,  33. 

32.  Where  a  new  partner  came  into  a  firm,  and  the  same  bu- 
siness was  carried  on  at  the  same  place  as  by  the  old  firm,  and 
one  of  the  members  of  the  new  firm  gave  a  promissory  note  in 
the  name  of  the  new  firm,  to  secure  a  debt  due  by  the  old  to  one 
of  the  workmen,  who  continued  in  the  employment  of  the  new 
as  he  had  been  in  that  of  the  old  firm,  and  which  note  was  regularly 
entered  on  the  books  of  the  new  firm,  if  idcis  ]ield,  that  the  onus  of 
proving  tliat  the  note  was  given  in  bad  fliith,  and  that  the  payee 
knew,  or  had  reason  to  believe  it,  rested  upon  the  defendant. 
Ibkl, 

33.  If  one  partner  execute  a  bond  in  the  name  of  the  firm,  and 
purporting  to  be  the  obligation  of  the  firm,  it  will  not  bind  the 
firm  if  the  partner  had  no  authority  under  seal  to  execute  it,  nor 
will  it  bind  the  partner  who  signed  and  sealed  it,  because  he  did 
not  seal  and  deliver  it  as  his  own  act  and  deed.  Sellers  V-, 
■Streator,  5  Jones,  261. 

34.  Where  one  partner  uses  the  effects  of  the  firm  in  the  pay- 
ment of  his  private  debt,  which  is  assented  to  at  tlie  time,  or 
subsequently  agreed  to,  by  the  other  partner,  it  will  bind  the 
firm  and  prevent  the  recovery  by  them  of  the  effects  thus  used. 
Carter  v.  Beeman,  6  Jones,  44. 

35.  Where  it  appeared  that  each  of  the  partners  of  a  firm  was 
in  the  habit  of  using  the  debts  of  the  firm  in  satisfaction  of  his 
private  debts,  and  entries  of  such  dealings  were  duly  made  upon 
books  of  the  firm,  it  ivas  held,  that  in  an  action  by  the  firm  for 
the  price  of  goods  thus  disposed  of,  this  habitual  mode  of  deal- 
ing was  proper  evidence  to  repel  the  existence  of  fraud  in  such 
disposition,  and  to  create  a  bar  to  the  recovery  of  such  goods. 
So,  the  payment  of  a  debt  of  the  firm  subsequently  created,  to 
the  defendant,  by  the  complaining  partner,  may  be  received  as 
evidence  to  disprove  fraud  in  the  other  partner.     IJnd. 

3(5.  A  bond  made  by  one  of  the  partners  of  a  firm,  as  alleged, 
for  goods  sold  and  delivered  to  the  firm,  may,  if  the  sale  and 
delivery  be  otherwise  proved,  be  evidence  of  the  time  of  pay- 
ment, or  of  the  amount,  as  any  other  admission  of  one  of  the 
partners  would,  be,  but  such  bond  is  not  proof,  per  se,  of  the  con- 
sideration, so  as  to  entitle  the  plaintiff  to  recover  against  the 
other  partner  for  goods  sold  and  delivered  to  the  firm.  Frone- 
harger  v.  Henry,  6  Jones,  548. 

37.  Where,  upon  the  face  of  an  instrument,  it  appeared  that 
one  signed,  sealed  and  delivered  it,  in  order  to  bind  the  firm  of 
which  he  was  a  member,  and  not  as  his  own  individual  bond,  ^Y 


PAPtTNERSHIP— I-II.  947 

was  held  that  it  was  not  liis  individual  bond,  even  thongh  the 
firm  was  not  bound  by  it.     Fislar  v.  Pender,  7  Jones,  48o. 

See  (Executors  and  Adtninistrator.s — Of  their  liabihty  to  credi- 
tors, &Q.,  108.)  (Joint  Obligations,  1-6.)  (Judgment— Of  the 
efiect  of  a  judgment,  27.)  (Partition,  12-13.)  (Payment,  6.) 
(Release,  5.)  (Retailer  of  spirituous  liquors,  6.)  (Set" Off,  5-24- 
27.)  (Trespass—Of  trespass  quaredausumfregit^ol.)  (Tenants 
in  common,  25.) 

If.       OF   THE    DISSOLrTIO^r   OP   A    jPARTKERSHIP. 

1.  The  death  of  a  partner  dissolves  the  partnership,  and  a 
clerk  or  agent  wlio  had  been  appointed  by  the  company  cannot, 
after  such  dissolution,  do  any  act  to  aflect  the  interest  of  the 
•company,  such  as  to  receive  payments,  &c.  McNmiqhton  y. 
Moore,  1  Hay.,  1«),  (217.) 

2.  Where  a  partnership  is  dissolved  and  a  receiver  appointed, 
a  payment  of  a  partnership  debt  to  one  of  the  firm,  by  a  debtor 
ha^dng  knowledge  of  the  facts>  is  void,  and  the  surviving  partner 
may  recover  the  debt.     Manning  v.  Brickell^  2  Hay.,  133,  (301.) 

3.  The  representative  of  a  deceased  partner  cannot  be  sued 
while  there  is  a  surviving  partner.  Bure/ici/n  v.  Hostler,  Tav., 
124,  (75.)  S.  a  2  Hay.,  104,  (2(34.)  (Altered,  see  Rev.  Code, 
ch.  31,  sec^  85.) 

4.  Although  the  admii^sions  of  one  partner,  made  after  the 
dissolution  of  the  partiiership,  may  be  used  to  repel  the  statute 
of  limitation,  and  the  like,  yet  this  is  confined  to  cases  where  the 
partnership  debt  is  proved  aliunde.  Such  admissions  are  incom- 
petent to  establish  the  debt  originally  as  one  due  by  the  partner- 
ship. Willis  v.  HdJ,  2  Dev.  and  Bat.,  231.  (Such  admissions 
will  now  repel  the  statute  as  against  himself  only.  Rev.  Code, 
ch.  65,  sec.  'li.) 

5.  When  a  co-partnersliip  is  dissolved,  notice  of  the  dissolution 
should  be  given  to  tliose  who  were  in  tlie  habit  of  dealing  with 
the  firm,  and  to  others,  either  by  advertisement  in  a  public  ga- 
zette, or  otherwise.      Walton  v.  Tomlin,  1  Ired.,  593. 

().  Where  one  ofitwo  partners  in  a  firm  retires  from  it,  and  as- 
signs all  his  interest  in  the  store  accounts  to  the  other,  who  af- 
terwards dies,  suits  to  recover  the  debts  must  be  brouglit  in  the 
name  of  the  surviving  partner,  and  not  in  that  of  the  personal 
representative  of  the  deceased  one,  to  wdiom  they  had  been  as- 
signed.    Felton  V.  lleid,  7  Jones,  269. 

7.  Where  a  partnership  has  had  continuous  dealings  with  a 
distant  correspondent  for  some  time,  actual  notice  of  its  dissolu- 
tion must  be  given  to  such  correspondent,  to  prevent  a  lialiility 
of  all  the  members  of  the  firm  for  subsequent  dealings  carried  on 
by  one  of  the  partners  in  the  name  of  the  firm,  though  without 


948  PARTNERSHIP— II-III. 

the  knowledge  or  consent  of  the  other  late  partners.  ScJiieffelin 
V.  Stevens,  1  Winst.,  106. 

8.  Publication  of  such  notice  in  a  local  news-paper  in  this  State 
cannot  be  regarded  as  actual  notice,  or  as  evidence  from  which 
actual  notice  may  be  inferred.     Ihid. 

See  (Limitations — When  the  statute  will,  or  will  not,  bar,  20- 
54.)  (Partnership — What  constitutes  a  partnership,  &c.,  24-25 
-26.) 

ni.       OF  THE  SALE  AND  PURCHASE  OF  PARTNERSHIP  EFFECTS. 

1.  The  purchaser  of  partnership  effects,  under  a/. /a.  against 
one  co-partner,  takes  them  subject  to  the  accounts  ot  the  co- 
jjartnership,  and  can  only  claim  a  share  of  the  surplus  after  the 
paj^ment  oi  the  partnership  debts.  But  the  sheriff  is  not  affec- 
ted by  this  equity  between  the  purchaser  and  the  other  part- 
ners.    Tredivell  v.  Boscoe,  3  Dev.,  50. 

2.  One  partner  cannot  maintain  an  action  of  any  kind  at  law 
against  a  person  who  purchases,  from  a  co-partner,  the  partner- 
ship effects,  though  such  sale  was  made  by  the  co-partner  in 
fraud  of  the  partnership  rights,  and  to  satisfy  his  own  individ- 
ual debt.      Wells  v.  MitcMl,  1  Ired.,  484. 

3.  On  a  separate  judgment  against  one  partner  for  a  partner- 
ship debt,  only  the  interest  of  that  partner  in  any  portion  of  the 
partnership  property  can  be  sold  by  execution.  Price  v.  Hunt, 
11  Ired.,  42. 

4.  An  officer,  who  has  an  execution  against  one  of  several  part- 
ners in  trade  for  the  individual  debt  of  the  partner,  may  seize  the 
partnership  property  and  sell  the  interest  of  the  individual  part- 
ner therein,  without  subjecting  himself  to  an  action  by  the  other 
partners  for  so  doing.     McPherson  v.  Pemherton,  1  Jones,  378. 

5.  No  action  at  law  of  any  kind  can  be  maintained  against  a 
sheriff  for  seizing,  selling  and  delivering  goods  of  a  partnership 
to  the  purchaser,  in  obedience  to  afi.  fa.  against  one  of  the  part- 
ners.     Vann  v.  Hassey^  1  Jones,  381. 

6.  The  purchaser  of  partnership  goods  at  a  sheriff's  sale,  under 
an  execution  against  one  of  two  partners,  constitutes  him  a  ten- 
ant in  common  of  the  goods  Avith  the  other  member,  and  of  course 
with  the  assignee  of  the  tirm.  But  if  such  purchaser  take  all 
the  goods  away,  and  sell  them,  the  assignee  may  have  assump- 
sit for  the  part  of  the  money  arising  from  the  sale  to  which  he 
is  entitled.     Latham  v.  Simmons,  3  Jones,  27. 

See  (Execution — Lien  and  priority  of  executions,  44.) 


PATKOL— PAWN— PAYMENT.  ,949 


PATROL. 

1.  When  the  county  court  does  not  form  rules  and  regulations 
for  patrollers,  under  the  act  of  1802,  and  as  under  that  act  one 
patroller  has  not  a  right  to  inflict  a  punishment  by  himself,  and 
if  private  persons  aid  and  abet  him  in  doing  so,  though  called 
upon,  they  as  well  as  he  are  all  trespassers.  Richardson  v.  Salter, 
N.  C.  Terra,  E.  Q^,  (505.)  (For  the  law  subsequently  see  Eev.  Code, 
ch.  83.) 

2.  Some  degree  of  discretion  in  the  punishment  of  slaves  is 
necessarily  allowed  patrols ;  and  if,  in  the  exercise  of  this  dis- 
cretion, they  inflict  punishment,  they  are  not  liable  in  an  action 
to  the  master,  unless  their  conduct  clearly  demonstrates  malice 
against  the  owner,  such  as  excessive  severity,  &c.  Tate  v. 
O'Neal,  1  Hawks,  418. 

3.  In  the  absence  of  any  special  regulations  by  the  county 
court,  no  act  of  a  patroller  in  the  discharge  of  his  official  duties 
can  be  valid,  unless  a  majority  of  the  patrollers  in  the  district 
be  present,  and  a  plurality  of  these  sanction  the  act.  State  v. 
Hailey,  6  Ired.,  11. 

4.  The  oflice  of  a  patroller  is  both  judicial,  or  quasi  judicial,  and 
executive.     Ibid. 

5.  Ministers  of  the  Gospel  residing  in  an  incorporated  town 
are  not  exempt  from  performing  the  duty  of  patrol,  when 
required  to  so  by  the  proper  authorities,  according  to  the  cor- 
poration ordinances.     Elizabeth  City  v.  Kennedy,  Busb.,  89. 

6.  Patrols  are  not  protected  by  their  ofiice  when  they  greatly 
exceed  their  authority  in  beating  a  slave.  State  v.  Atkinson^  6 
•Jones,  65. 


PAWN. 

See  (Pledge.) 


PAYMENT. 

1.  A  creditor  may,  at  his  option,  apply  a  payment  at  law  to  a 
bond  or  account  due  from  his  debtor,  if 'the  debtor  fail  to  do  it 
Hamilton  v.  Benbury,  2  Hay.,  385,  (586.) 


950  PAYIMENT. 

2.  Where  money  comes  into  the  hands  of  a  creditor  rightfully 
and  by  his  debtor's  consent,  for  no  definite  and  particnlar  pur- 
pose, and  the  creditor  has  but  one  demand,  it  operates,  when 
sureties  are  concerned,  as  a  discharge  ipso  facto  of  the  oblig-ation. 
Manner  v.  31c3Iurray,  1  Dev.,  218. 

3.  A  payment  differs  from  a  set  off  only  in  this,  that  a  pay- 
ment is  by  the  consent  of  parties,  either  expressed  or  impHed, 
appropriated  to  tlie  discharge  of  a  debt.  McDowell  v.  T'ate,  1 
Dev.  24!J. 

4.  An  account  signed  by  one,  acknowledging  the  receipt  of 
articles  from  another,  whose  bond  the  first  holds  for  a  larger 
amount,  should  be  left  to  the  jury  as  evidence  of  a  payment  on 
the  bond.     Ibid. 

5.  Payments  made  on  account  of  a  debt  are  to  be  first  applied 
to  the  interest  accrued  thereon;  and  this  is  a  rule  where  the 
interest  is  given  by  positive  enactment,  as  Avell  as  where  it  is 
allowed  by  the  jury  in  their  discretion.  Feebles  v.  Gee,  1  Dev.. 
341. 

6.  Eeceiving  the  promissory  note  of  one  partner  in  payment 
of  an  open  account  against  a  firm,  and  delivering  up  the  account 
in  writing,  does  not  of  itself  discharge  the  original  demand. 
Wilson  V.  Jennings,  4  Dev.,  90. 

7.  Where  a  dealer  with  a  baidc  had  a  balance  to  his  credit 
upon  a  general  cash  account,  and  died  indebted  to  it  by  judg- 
ment and  upon  simple  contract,  the  bank  has  a  right,  indepen- 
dent of  the  statute  of  set  off,  to  apply  the  balance  to  the  latter 
debt.     State  Bank  v.  Armstiwig,  4  Dev.  519. 

8.  Where  one  is  a  bailiff  or  receiver  of  another,  there  is,  du- 
ring the  continuance  of  that  relation,  and  until  an  accounting 
between  them  as  to  their  transactions  embraced,  in  the  account, 
no  legal  presumption,  as  an  arbitrary  and  settled  rule  of  law, 
that  the  receiver  had  paid  to  the  principal  all  the  monies,  or  any 
particular  sura,  before  received  for  him.  State  Bank  v.  Locke^ 
4  Dev.,  529. 

9.  If,  in  the  case  of  a  previous  debt,  the  creditor  by  agreement 
with  the  debtor  accept  the  note  of  a  third  person,  payable  to 
himself,  it  is  presumed  to  be  in  satisfaction  and  extinguishment 
of  the  original  consideration.  Much  more,  when  the  seller  agrees 
with  the  vendee  at  the  time  of  the  sale,  to  take,  and  he  does  then 
take,  for  the  price,  the  note  of  such  third  person.  Symington  v. 
3lGLm,  1  Dev.  and  Bat.,  291. 

10.  If  a  debtor  have  conveyed  property  to 'his  creditor  in  trust 
to  sell  and  satisfy  the  debt,  and  the  latter  sell  the  property  and 
hold  the  proceeds,  it  is  a  payment  of  the  debt.  Disnmkes  v. 
Wright,  3  Dev.  and  Bat.,  78. 

11,  A  receipt,  not  under  seal,  is  not  conclusive  evidence  of 
payment,  but  may  be  explained  by  parol.  Lowe  v.  JVeatJierhj„ 
4  Dev.  and  Bat,  212. 


PAYMENT.  951 

12.  A  payment  in  counterfeit  bank  notes  is  a  nullity,  and  the 
party  receiving  them,  as  the  price  of  articles  sold,  may,  if  there 
be  no  receipt  and  acquittance  under  seal,  recover  upon  the  origi- 
nal consideration,  although  both  parties  were  ignorant  at  the 
time  that  the  notes  were  counterfeit.     Ihid. 

13.  "Where  a  debtor  by  note  to  a  bank  paid  the  full  amount  of 
the  note  to  the  cashier,  declaring  that  the  payment  was  intended 
to  discharge  that  debt,  the  cashier  was  bound  to  make  the  ap- 
plication accordingly,  and  could  not  apply  any  part  of  the  sum 
so  paid  to  the  payment  of  damages  on  a  protested  bill,  which  he 
alleged  to  be  due  to  the  bank  from  the  debtor.  Buwjou  v. 
Latham,  5  Ired,,  551. 

14  The  act  of  1826,  making  the  lapse  of  ten  years  a  presump- 
tion of  payment,  applies  to  simple  contracts  as  well  as  to  sealed 
instruments.  SjjriiiU  v.  Davenport,  5  Ired.,  663.  (See  Rev.  Code, 
ch.  ^ob,  sec.  18.) 

15.  To  make  specific  articles  a  payment,  they  must  be  received 
as  a  payment,  or  by  a  subsequent  agreement  "^  they  must  be  ap- 
plied as  a  payment.     Lode  v.  Andres,  7  Ired.,  159. 

16.  When  the  law  is  called  upon  to  make  the  application  of 
payments  by  a  debtor  to  a  creditor,  who  has  various  demands 
against  him,  and  no  application  has  been  made  by  the  parties, 
the  application  can  only  embrace  debts  or  demands  for  certain 
fiums,  or  such  as  can  be  made  certain,  as  accounts  for  work  or 
labor,  or  for  goods  sold  or  the  like,  but  not  uncertain  and  unli- 
quidated damages.     Ramsour  v.  Thomas,  10  Ired.,  165. 

17.  There  is  another  rule  in  this  application  by  the  law,  that 
it  is  to  be  first  made  to  the  debt  for  which  the  security  is  the 
most  precarious.     Ihid. 

18.  The  plaintifis  placed  in  the  hands  of  A  a  judgment  to 
collect  against  B,  and  afterwards  A  paid  the  amount  of  it  to 
the  plaintifis,  saying  at  the  same  time  that  he  ]iad  not  recovered 
any  part  of  the  jiulgment  from  B,  and  the  pUiintifFs  told  him 
that  he  might  take  and  use  it  as  his  own;  it  was  held,  that  if 
this  was  a  payment  by  A,  without  tlie  authority  of  B,  it  was 
an_  ofticious  payment  by  A,  which  could  not  protect  B  from  -a 
suit  against  him  on  the  judgment;  and  it  tvas  held  further,  that 
although  the  statement  of  A,  wdiich  was  introduced  in  evidence, 
was  in  writing,  yet  it  was  proper  to  leave  it  to  the  jury,  whether 
A  paid  the  judgment  as  agent  for  B,  or  whether  the  transac- 
tion Avas  not  a  purchase  of  the  judgement  by  A,  from  the  i  )lain- 
tifis.     Nnll  V.  3Ioore,  10  Ired.,  324. 

19.  AVhere  a  constable,  in  whose  hands  a  judgment  liad  been 
placed  for  collection,  received  in  payment  sundry  notes  of  hand, 
and  afterwards  paid  over  the  amount  in  money  to  the  plaintiff"  in 
the  judgment:  ii  was  held,  that  the  constable  could  not  after- 
wards recover,  in  the  name  of  the  plaintifi',  the  amount  of  the 
said  judgment  from  the  defendant  in  the  judgment,  although  he 


952  PAYMENT. 

could  show  that  the  notes  received  from  the  defendant  were  on 
insolvent  persons  and  fraudulently  passed  to  him.  Rogers  v. 
Nutdl,  10  I  red.,  Ul. 

20.  It  is  the  rule  in  this  State  to  apply  payments  to  the  debt 
for  which  the  security  is  most  precarious,  when  no  application  of 
the  money  is  made  by  the  party  paying.  State  v.  Thomas,  H 
Ired.,  251. 

21.  Though,  by  statute,  payment  of  a  bond  may  now  be 
pleaded,  and  any  thing  ag-reed  to  be  received  in  satisfaction  will 
amount  to  payment,  if  the  agreement  be  executed  so  that  the 
thing  becomes  at  once  tlie  property  of  the  obligee,  yet  it  is  other- 
wise of  a  verbal  agreement  to  deliver  at  a  future  day,  in  which 
case  the  rule  of  the  common  law,  eo  ligamine,  quo  ligatur,  d-c, 
applies.     Rhodes  v.  Chesson,  Busb.,  336. 

22.  An  order  for  goods,  not  accepted,  is  no  payment  for  prop- 
erty sold ;  and  the  owner  may  recover  on  the  common  count. 
Nissen  v.  Tucl^er,  1  Jones,  176. 

23.  If  a  debtor  hands  money  to  a  third  person,  who  promises 
to  hand  it  to  the  creditor,  the  money  does  not  vest  in  the  creditor 
so  as  to  make  it  his,  and  thereby  discharge  the  debt,  until  he  is 
notified  of  the  transaction,  and  agrees  to  adopt  the  act  of  the 
third  person.     Strayhorn  v.  Wehh,  2  Jones,  199. 

24.  Where  it  was  agreed  between  the  president  of  a  plank 
road  company  and  a  subscriber  to  the  stock,  that  the  latter  might 
pay  for  his  subscription,  which  had  been  previously  made,  in 
work  to  be  done  on  the  road,  the  company  furnishing  the  mate- 
rials wherewith  the  work  was  to  be  done,  which  they  failed  to 
do,  in  consequence  of  which  the  defendant  also  failed  to  do  the 
work,  it  toas  held  that  there  was  neither  a  payment  nor  an  accord 
and  satisfaction  shown  by  the  defendant,  and  that  the  company 
was  entitled  to  recover.  Salisbury  and  TaylorsviUe  Flank  Road 
Company  v.  Allison,  5  Jones,  311. 

25.  Where  a  person  sold  property  and  took  a  note  tor  the  price, 
and  there  was  a  lien  upon  the  property  at  the  time  of  the  sale, 
and  the  purchaser  paid  ofi"  the  amount  of  such  lien,  it  was  held 
that  the  law  presumed  the  payment  to  have  been  made  at  the 
request  of  the  vendor,  and  that  it  was,  therefore,  in  effect  a  pay- 
ment of  the  note  held  by  him.    Crowell  v.  Simpson,  7  Jones,  285. 

See  (Agent  and  Principal — Factors,  1-2.)  (Bonds — Payment 
or  satisfaction  of  bonds.)  (Executors  and  Administrators— Letters- 
testamentary  and  letters  of  administrators,  36.)  (Executors  and 
Administrators — Of  sales  by  executors  and  administrators,  9-17 
20.)  (Husband  and  Wife — Husband's  interest  in  his  wife's 
estate,  &c.,  15-16.)  (Judgment — Of  the  satisfaction  of  judg- 
ments.)    (Usury — Of  the  action  for  the  penalty,  15.) 


PENAL  STATUTES.  953 


PENAL  STATUTES. 

1.  No  penal  statute  can  be  construed  by  implication,  or  other- 
M'ise  than  by  the  express  letter.  State  v.  Knight,  2  Hay.,  109, 
(2G7,)  S.  C.  tay.,  65,  C44.) 

.  2.  The  repeal  of  an  act  giving  a  forfeiture  foi"^n  offence  is  a 
repeal  for  all  forfeitures  incurred  under  the  act  repealed,  unless 
there  be  a  special  exception  to  the  contrary.  And  if  an  act  be 
repealed,  pending  a  suit  for  a  forfeiture  under  it,  the  repeal^may 
still  be  pleaded  in  bar.     Governor  v.  Hoivard,  1  Murph.,  465.  _ 

3.  Penal  statutes  are  to  be  construed  strictly.  The  act  which 
imposed  a  forfeiture  upon  any  justice  accepting  the  office  of 
deputy  clerk,  and  upon  any  deputy  clerk  accepting  the  office  ot 
justice  of  the  peace,  lield  not  to  apply  to  a  person  who  was  both 
deputy  clerk  and  justice  before  the  passage  of  the  act,  and  who 
continued  to  act  in  both  capacities  afterwards.  Wardens  of 
Granville  v.  Sneed,  1  Murph.,  485.    (SeePtev.  Code,  ch.  62,  sec.  5.) 

4.  In  a  penal  statute  the  word  "or"  shall  never  be  constraed 
"  and,"  so  as  to  make  it  more  penal.  Stcde  v.  Kearney,  1  Hawks, 
53. 

5.  In  an  action  on  a  penal  statute,  it  is  necessary  in  the  dec- 
laration or  warrant  to  name  the  statute,  or  recite  its  provisions, 
or  refer  to  it  in  some  way,  as  by  the  general  terms,  "  contrary  to 
the  statute  in  such  case  made  and  provided,"  so  as  to  give  the 
party  notice  of  the  law,  with  the  violation  of  which  he  is  charged. 
Scroter  v.  Harrington,  1  Hawks,  192.  S.  P.,  Worl-e  v.  Bijers,  3 
Hawks,  228.  Buncombe  Turnpike  Company  y.  McCarson,  1  Dev. 
and  Bat.,  306. 

6.  The  certificate  of  the  justice  required  by  the  act  of  1796,  "to 
puiysh  persons  for  removing  debtors,"  &c.,  was  intended  solely 
for  the  benefit  of  the  person  who  removed  the  debtor,  it  was  on- 
ly one  mode  of  iwoof  that  the  debtor  had  duly  advertised;  ^eZc?, 
therefore,  that  it  might  have  been  obtained  at  any  time  either 
before,  or  after  the  removal,  and  might  have  been  dispensed  with 
altogether,  if  tlie  party  could  make  the  same  proof  by  other  tes- 
timony. Mann  v.McVay,  1  Hawks,  226.  (The  law  on  this  sub- 
ject is  altered.     See  Rev.  Code,  ch.  50,  sec.  14.) 

7.  Where  a  judgment  is  recovered  in  the  name  of  the  wardens 
of  the  poor,  by  a  relator,  for  a  penalty,  to  one  half  of  which  he  is 
by  law  entitled,  he  may  release  one  half  of  the  judgment,  that 
being  his  own  share,  but  he  cannot  release  the  other  half,  which 
belongs  to  the  wardens.  Wardens  of  the  Poor  v.  Cope,  2  Ired., 
44. 

8.  The  overseer  of  a  road  may  recover  in  his  own  name  the 
penalty  for  hands  not  working  on  the  pubhc  road.  He  is  not 
bound  nor  required  to  sue  "  for  himself  and  the  county,"  since 
the  fine  is  to  be  applied  by  the  overseer  to  the  keeping  up  of  the 


954  PENAL  STATUTES. 

road     Duffey  v,  Averitt,  5  Ired.,  455.     (See  Kev.  Code,  cb.  101,. 
sec.  9.) 

9.  Judgment  on  a  warrant,  by  an  overseer  of  a  road,  for  $30 
for  thirty  liands  not  working  on  a  public  road,  when  the  jury 
find  only  $28,  will  not  be  arrested.  As  there  are  no  declarations 
on  a  warrant,  the  court  will  intend  that  there  were  thirty  counts 
for  $1  each  per  Imnd,  and  then  there  may  be  judgment  on  the 
twenty-eight  counts  proved,  and  not  on  the  other  two.     Ihid. 

10.  l\\  an  action  upon  a  statute  to  recover  a  penalty,  the  plain 
tiff  must  set  forth,  in  his  declaration,  every  fact  which  is  necessa- 
ry to  inform  the  court  that  his  case  is  within  the  statute.  WrigJd 
V.  Wheder,  8  Ired.,  184. 

11.  Penal  statutes  cannot  be  extended  by  equitable  construc- 
tion beyond  the  plain  import  of  their  language.  Smitlnvick  v. 
Williams,  8  Ired.,  268. 

12.  When  a  covenous  action  is  brought  for  a  penalty^  and  the 
recovery  in  it  is  pleaded  to  a  subsequent  bona  fide  action  for  the 
same  penalty,  the  plaintiff  in  the  i-econd  action  may  reply  that 
the  judgment  in  the  first  was  covenous.      Burnett  v.   Davidson,' 

10  Ired.,  94. 

13.  Under  the  statute  prohibiting  the  sale  of  liquor  to  a  slave, 
which  gives  a  penalty  ot  $100  against  the  offender,  and  declares 
that  it  shall  "  be  recovered  by  warrant  before  any  justice  of  the 
peace,  and  applied  one  half  to  the  use  of  the  person  suing  lor  the 
same,  and  the  other  half  to  the  use  of  the  poor  of  the  county," 
any  person  may  sue  qui  fam  for  the  penalty  as  informer,  dlcliae 
V.  Keller,  10  Ired.,  398.  (The  offence  of  unlawful  selling  to  slaves 
subsequently  onlv  indictable  as  a  misdemeanor.  See  Kev. 
Code,  eh.  34,  secs.''83-84-85-86-8 7-88  and  89.) 

14.  A  common  informer  cannot  recover  a  penalty  unless  he 
sue  within  the  period  allowed  by  the  act  imposing  the  penalty. 
As  where  a  penalty  was  imposed  on  persons  fishing  in  the  Roa- 
noke river  at  certain  times,  and  any  person  might  sue  for  the 
same,  provided  he  did  so  within  one  month  from  the  forfeiture, 
and  if  no  suit  was  brought  within  that  period,  the  law  officer  of  the 
State  Avas  dn-ected  to  sue  for  the  use  of  the  State,  (act  of  1827, 
ch.  54,)  if  teas  held  that,  after  the  expiration  of  the  month,  the 
right  of  the  common  informer  was  gone.     Fagan  v.  Armistead, 

11  Ired.,  433. 

15.  A  warrant  for  a  penalty,  incurred  by  violating  an  ordinance 
of  a  town,  must  set  forth  the  act  of  assembly  by  virtue  of  which 
the  ordinance  was  passed,  and  an  omission  to  do  so  will  furnish 
a  gromid  for  an  arrest  of  the  judgment.  Comnmsioners  of  Wasli- 
nytoji  V.  Frank,  1  Jones,  43(j. 

16.  The  action  for  the  penalty  for  fornication  imder  the  act, 
Eev.  Stat.,  ch.  119,  sec.  7,  must  be  brought  within  ten  days  after 
the  commission  of  the  ofience.     Curtis  v.  MiUer,  1  Jones,  553. 


PEXAL  STATUTES— PEXSION.  955 

(The  section  in  question  is  omitted  in  the  Eev.  Code.     See  eh 
115.) 

n.  The  action  against  a  guardian  for  the  penalty  of  $200, 
given  by  the  Rev.  Code,  ch.  54,  sec.  2G,  in  connection  with  ch. 
46,..  sec.  20,  for  hiring  the  property  of  his  ward  privately,  is  not 
to  be  brought  in  the  name  of  the  State,  but  is  properly  'brought 
in  the  name  of  the  person  who  may  sue  for  the  same.  Norman 
V.  Bunhar,  8  Jones,  317.     (See  Rev.   Code,  chs.  47  and  48.) 

See  (Debt— Of  the  verdict  in  the  action  of  debt,  4-5.)  (Hus- 
band AVife— :\Iarriage,  17.)  (Justices  of  the  Peace— Of  justices' 
warrants  in  civil  cases,  5-7-11-13.)  (Jusiices  of  the  Peace— Of 
justices'  warrants  in  criminal  proceedings,  10-11.)  (Abatement 
—By  the  death  of  parties,  2-4-12-13.)  (Pleading— Of  the  writ 
and  declaration,  G-7-24-2G-27-29.) 


PENSrOX 

1.  Where  the  plaintiff  declared  against  the  defendant  for  a 
breach  of  the  following  agreement:  ""R.  H.  M.  has  promised  to 
pj-ocure  for  my  mother  a  pension  from  the  government  of  the  U. 
S.,  supposed  to  be  due  her  as  the  widow  of  Lieut.  C.  G.,  and  in 
the  event  of  his  doing  so,  1  promise  and  oblige  myself  to  give 
the  said  R.  H.  M.  one-half  the  money  due  her  on  account  of  the 
said  pension;"  It  teas  held  that  this  agreement  referred  to  a 
pension  to  which  the  widow  was  then  entitled,  or  supposed  to 
be  entitled,  and  not  to  a  pension  to  which  she  became  entitled 
under  an  act  of  Congress  subsequently  passed;  and  further,  that 
although  the  sales  of  pensions  are  by  law  prohibited,  yet  the 
court  could  not  infer  from  this  agreement,  (though  a  jury  might,) 
that  it  was  made  by  the  son  as  the  agent  of  his  mother,  and, 
therefore,  it  did  not  transfer  any  title  to  any  portion  of  the  pen- 
sion, and  was  not,  on  that  account,  invalid.  And  it  ims  held, 
also,  that  upon  a  count  for  work  and  labor  A  could  not  recover 
from  B,  because  his  services  did  not  enure  to  the  benefit  of  B, 
and,  therefore,  the  law  would  not  imply  a  promise.  3Ioslni  v. 
Hunter, 'd  Ired.,  119. 

2.  An  agreement  between  the  widow  of  a  soldier  of  the  revo- 
lution, entitled  to  a  pension  under  the  act  of  Congress  of  1848, 
ch.  120,  and  an  agent,  that  the  latter  should  receive  a  certain 
part  of  the  pension  money  for  his  services  in  obtaining  it,  is 
void,  and  money  received  by  the  agent  under  such  an  agreement 
may  be  recovered  by  the  pensioner  in  an  action  of  assumpsit. 
Poivell  V.  Jennings,  3  Jones,  547. 

3.  \Vhere  a  sub-agent  receive  from  the  general  government 
a  pension,  under  an  agreement  with  the  pensioner,  that  one-half 
of  the  amount  was  to  be  paid  to  the  principal  agent  at  Washing- 


956  PENSION— PERJUEY. 

ton  City,  and,  before  any  objection  or  demand  on  the  part  of  the 
pensioner,  one-half  was  paid  to  his  principal  by  the  snb-agent, 
it  was  held,  that  the  amount  thus  paid  could  not  be  recovered  by 
the  pensioner  in  a  suit  against  the  sub-agent.  Bridgers  v.  Mc- 
Neil, 6  Jones,  311. 


PERJURY. 

1.  The  indictment  charged  that  the  defendant  swore,  "  that 
one  G.  did  not  interrupt  a  constable  in  driving  certain  cattle  to 
G.'s  house,"  the  evidence  was  that  the  defendant  swore  "that  G. 
did  not  assist  in  driving  the  cattle  from  the  officer;"  held  that 
the  evidence  did  not  support  the  charge.  State  v.  Bradley,  1 
Hay.,  403,  (464)  and  463,  (533.) 

2.  In  order  to  constitute  peijury,  the  oath  must  be  taken  in 
some  judicial  proceeding,  and  before  some  person  authorized  to 
administer  the  oath  which  is  taken.  A  mere  voluntary  oath 
cannot  amount  to  perjury.     State  v.  IVyatt,  2  Hay.,  56,  (219.) 

3.  It  is  not  necessary,  in  an  indictment  for  perjury,  to  state 
that  the  person  holding  the  court,  before  which  the  false  oath 
was  taken,  is  a  judge  of  the  superior  court;  such  statement  be- 
ing expressly  dispensed  with  by  the  latter  part  of  the  3rd  section 
of  the  act  of  1791.  Stafev.  Bryson,  1  Car.  L.  li.  503,  (115.)  (See 
Rev.  Code,  ch.  35,  sec.  16.) 

4.  Perjury  may  be  committed  in  answering  a  question  that 
has  no  direct  relation  to  the  issue,  if  asked  with  a  design  to 
impair  the  credit  of  the  witness  as  to  those  parts  of  the  case 
which  were  material  to  the  issue,  particularly  if  the  witness  he 
cautioned  as  to  his  answer.     State  v  Street,  1  Murph.,  124. 

5.  In  an  indictment  for  perjury,  the  style  of  the  court,  before 
which  the  perjury  is  alleged  to  have  been  committed,  must  be 
legally  set  forth.     State  v.  Street,  1  Murph.,  156. 

6.  if  an  indictment  for  perjury  charge  it  to  have  been  com- 
mitted at  certain  court,  in  an  issue  joined  in  a  certain  cause  which 
came  on  there  to  be  tried,  it  cannot  be  supported  if  the  record 
produced  shows  that  no  issue  wqs  joined.  State  v.  Ammonds,  3 
Murph.,  123. 

7.  In  an  indictment  for  perjury,  it  is  necessary  to  set  forth  that 
the  oath  was  taken  in  some  judicial  proceeding  before  a  compe- 
tent tribunal,  and  upon  a  point  material  to  the  issue  depend- 
ing; and  by  the  common  law  it  was  necessary  to  set  forth  the 
record  of  the  cause,  wherein  the  alleged  perjury  is  charged  to 
have  been  committed,  to  prove  on  the  trial  that  there  is  such  a 
record  by  producing  it,  or  a  certified  copy  ol  it,  and  when  pro- 


PERJURY.  957 

(luced,  it  must  agree  with  that  set  forth  in  the  indictment,  without 
a  material  variation.     Ihid. 

8.  Since  tlie  act  of  1791,  it  is  not  necessary  to  set  forth  the 
record  of  the  cause  in  the  indictment,  but  if  it  be  recited,  the 
recital  must  be  correct,  or  the  prosecution  must  liail.  Ihid.  (See 
Rev.  Code,  ch.  35,  sec.  IG.) 

9.  An  indictment  for  perjury,  on  a  trial  in  court,  is  proper 
which  states  that  the  oath  \n  as  taken  before  the  court,  and  that 
the  testimony  was  thereupon  given  to  the  jury;  and  it  will  be 
sufficient,  it  it  states  that  a  certain  person  held  the  court  in  the 
county  of  R.,  the  said  county  being  also  mentioned  in  the  cap- 
tion, and  afterwards  alleges  that  the  oath  wa-^  "then  and  there" 
taken,  for  those  words  refer  to  the  county  and  time  before  men- 
tioned.    State  V.  Witheroiv,  o  Muiph.,  153. 

10.  An  indictment,  which  charged  that  the  defendant  falsely, 
&c.,  swore  to  certain  facts  before  the  grand  jury,  but  did  not 
charge  how,  or  in  what  way,  the  facts  sworn  to  agreed  with  the 
allegations  in  the  indictment,  nor  that  they  were  material  to  or 
connected  with  the  question  then  under  consideration,  camiot 
be  sustained.     State  v.  Dodct,  3  Murph.,  226. 

11.  When  a  witness  comes  forward  and  is  sworn  with  uplifted 
hands,  he  may  be  convicted  of  perjury,  though  he  was  not  con- 
scientiously scrupulous  about  being  sworn  on  the  Holy  Gospel. 
State  V.   JVhisenhurst,  2  Hawks,  458. 

12.  Perjury  may  be  committed  in  swearing  falsely  to  a  collat- 
eral matter,  with  intent  to  prop  the  testimony  on  some  other 
point,  but  such  collateral  matter  must  be  material  to  the  point 
in  dispute ;  for  if  it  be  to  a  point,  the  existence  or  non-existence 
of  which  cannot  affect  the  question  in  dispute,  it  does  not  tend 
to  prevent  the  due  administration  of  justice,  and  therefore  is  not 
perjury.     Studdard  v.  Linville,  3  Hawks,  474. 

13.  Perjm-y  cannot  be  committed  by  taking  a  false  oath  in  a 
case  before  a*^  justice  of  the  peace,  of  which  he  has  no  jurisdic- 
tion.    State  v!  Alexander,  4  Hawks,  182. 

14.  Perjury  is  properly  assigned  in  an  oath  taken  before  a 
court  of  competent  jurisdiction,  although  the  witness  was  irre- 
gularly sworn.     State  v.  Molier,  1  Dev.,  263. 

15.  In  an  indictment  for  perjury,  it  is  sufficient  to  charge  gen- 
erally that  the  false  oath  was  material  to  the  trial  of  the  issue 
upon  which  it  was  taken ;  and  it  is  not  necessary  to  show  parti- 
cularly how  it  was  necessary.     Sfafev.  Mumford,  1  Dev.,  519. 

16.  "a  general  averment  falsifying  the  testimony  given  is  not 
sufficient;  every  fact  falsely  deposed  to  must  be  distinctly  nega- 
tived.    Ibid. 

17.  An  indictment  for  perjury,  which  sets  forth  that  a  warrant 
was  tried  in  which  A  demanded  of  B  twenty  dollars  for  corn, 
&c.   is  sufficiently  proved  by  producing  a  warrant  between  those 


958  PERJURY. 

parties  "  for  debt  due  hf  account,"  without  specifying  the  parti- 
culars of  the  account.     State  v.  Alexander,  2  Dev.,  470. 

18.  An  indictment  for  perjury  charging-  that  tlie  defendant 
*'  being  a  wicked  and  evil  person,  and  unlawfully  and  unjustly 
contriving,  &c.,  deposed,"  &c.,  and  concluding  that  the  defend* 
ant  "  of  his  wicked  and  corrupt  mind,  did  commit  willful  and 
corrupt  perjury,"  is  defective  even  at  common  law,  for  not  alleg- 
ing that  the  defendant  wiJlfuUt/  and  corruptly  swore  falsely. — 
State  V.  Garland,  3  Dev.,  114. 

19.  Where  the  defendant  is  indicted  for  a  perjury,  committed 
on  the  trial  of  an  issue  in  a  former  indictnient,  the  bill  must  set 
forth  the  finding  of  the  former  indictment  in  the  proper  court  of 
the  proper  county,  and  should  also  set  forth  that  indictment,  or 
so  much  of  it  as  to  show  that  it  charged  an  offence  committed  in 
that  county,  and  of  which  said  court  had  cognizance,  and  also 
the  traverse  or  plea  of  the  defendant  in  that  indictment,  where- 
on the  issue  was  joined;  and  a  judgment,  on  an  indictment  de- 
fective in  these  particulars,  must  be  arrested.  State  v.  GalU- 
more.  2  Ired.,  372.  (For  what  is  now  necessary  to  be  set  forth 
in  such  an  indictment,  see  liev  Rev.  Code,  ch.  35,  sec.  1(5.) 

20.  The  act  of  1791  was  repealed  by  the  Revised  Statutes  of 
183(),  and  the  act  of  1811  does  not  cure  such  defects,  for  they  are 
neither  informalities  nor  refinements  within  the  meaning  of  that 
statute.  Ibid.  (Sge  Rev.  Code,  ch.  35,  sec.  14.)  (The  act  of 
1791  was  substantially  restored  by  that  of  1842,  ch.  49.  See 
Rev.  Code,  ch.  35,  sec.  16.) 

21.  In  an  indictment  for  perjury,  it  is  not  necessary  to  set 
forth  the  pleadings  in  the  former  case,  in  Avhicli  the  perjury  is 
alleged  to  have  been  comn)itted;  the  act  of  1842  haAung  altered 
the  common  law  in  that  respect.     State  v.  Hoijle,  G  Ired.,  1. 

22.  There  is  but  one  statute  in  this  state  punishing  the  crime 
of  perjury.  Rev.  Stat.,  ch.  34,  sees.  50  and  52,  and,  therefore,  an 
indictment  for  that  crime,  Avhich  concludes  against  the  form  of 
the  statute,  is  right.  1  hid.  (See  Rev.  Code,  ch.  34,  sees.  49  and 
51.) 

23.  When  the  perjury,  on  which  an  indictment  is  founded,  is 
alleged  to  have  been  committed  on  the  trial  of  a  cause  at  a  spe- 
cial term  of  the  superior  court,  it  is  not  necessary  to  set  forth  in 
the  indictment  the  order  of  the  judge  directing  such  special  term 
to  be  held,  nor  the  appointment  by  the  governor  of  the  particu- 
lar judge  who  is  to  hold  it.  Nor  is  it  necessary  to  prove  either 
of  those  facts  on  the  trial.     State  v.  Ledford,  6  Ired.,  5. 

24.  An  indictment  for  perjury  must  set  out  the  substance  and 
effect  of  the  testimony  in  which  the  perjury  is  assigned.  State 
V.  Groves,  Busb.,  402. 

25.  Where  an  indictment  charged  the  defendant  with  having 
sworn  that  A  purchased  a  gun  of  B,  and  his  testimony,  as  proved 
on  the  trial,  was  that  B,  in  a  conversation  with  A,  asked  him  if 


PERJURY-^PILOTS-PLEADING-I 


959 


lie  had  brought  home  his  gun,  to  which  A  replied  "  he  had  for- 
got it,"  and  said,  "I  will  keep  the  gun  and  allow  $15  fur  it  on 
what  you  owe  me,"  to  which  B  replied  "  enough  said,"  it  ima 
held  that  the  proof  did  not  support  the  charge ;  for  B's  answer  did 
not  necessarily  import  an  assent  to  the  proposal  of  A,  but  was 
susceptible,  under  the  circumstances,  of  another  interpretation. 
Ibid. 

See  (Indictment — In  what  case  an  indictment  will  lie,  2.)  (In- 
dictment— Form  and  matters  relating  thereto,  3-22.)  (Indict- 
ment— Of  the  trial,  verdict  and  judgment,  15.)  (Indictment — 
Plea  of  former  acquittal  or  conviction,  2.)  (Evidence — In  crim- 
inal proceedings  and  indictments,  7-18^31--79.) 


PILOTS. 

1.  According  to  the  several  acts  of  Assembly  upon  the  subject 
of  "  pilots,"  where  a  pilot  tenders  his  services  to  a  vessel  of  over 
one  hundred  and  twenty  tons  burden,  bound  in  over  the  bar  at 
Ocracocke,  before  she  gets  to  tire  bar,  the  commander  is  bound 
to  pay  the  usual  rates  of  pilotage,  though  he  refuses  to  receive 
such  pilot  on  board  his  vessel,  and  though  the  weather  was  fair, 
and  though  it  was  in  the  month  of  August,  and  though  the 
defendant  was  fully  competent  to  bring  in  his  vessel  with  safety- 
Gerrisli  v.  Johnson,  1  Jones,  335.  (See  Rev.  Code,  ch.  85,  sec 
34,  and  following.) 


PLEADING. 


t.  Of  the  joinder  of  parties. 
II.  Of  the  joinder  of  action.s. 

III.  Ot  tlie  writ  and  declaration. 

IV.  Ot  pleas,  replications  and  demurrers. 
V.  Of  repleader. 

Vl.  Of  a  variance  between  the  allega- 
tion and  proof. 


VII.  Of  demurring  of  the  jiarol. 
A^III.  What  defects  may  he  cured  by  plead- 
ing over. 
IX.  Of    'scire  facias  and   the   pleadings 

thereon. 
X.  Of  the  verdict  atid  judgmenv. 
XI.  Of  writs  of  error. 


1.    OF   THE   JOtNDER   OP    PARTIES. 

1.  In  actions  of  contract,  the  parties  must  all  join  in  the  action, 
or  advantage  may  be  taken  of  the  non-joinder  on  the  general 


960  PLEADING— I— 11. 

issue;  but  in  actions  of  tort.,  the  non-joinder  must  be  pleaded  in 
abatement.  Weave  v.  Burge,  10  Ired.,  1(39,  S.  P.  Richardson  v. 
Jones.,  1  Ired.,  296. 

2.  Tenants  in  common  may,  in  general,  sue  separately  tor 
trespasses  on  real  estate,  yet  they  may  also  join  in  such  action, 
in  respect  to  the  injury  being  to  their  joint  possession.  Camp 
V.  Hohuesley,  11  Ired.,  211. 

3.  Where  one  joint  owner  of  a  slave,  having  him  in  his  posses- 
sion, agreed  to  take  off  his  handcuffs  upon  the  request  of  another, 
upon  his  agreeing  to  pay  him  $100  m  case  the  slave  should 
escape,  it  tvas  held  that  the  other  joint  owner  was  not  a  necessary 
party  to  a  suit  to  recover  the  money  for  the  escape  of  tne  slave. 

Weatherly  v.  3IiUer,  2  Jones,  166. 

4.  One  of  two  joint  purchasers  cannot,  in  an  action  for  a  deceit 
in  the  sale  of  the  property  to  them,  release  or  assign  his  interest 
to  the  other,  so  as  to  enable  him  to  sue  alone.  Scott  v.  Brown, 
'.\  Jones,  541. 

5.  In  actions  of  tort  arising  ex  contractu.,  a  non-joinder  of  a 
party  plaintifl"  may  be  taken  advantage  of  on  the  trial  upon  the 
plea  of  the  general  issue,  or  by  a  motion  in  arrest  of  judgment, 
or  by  writ  of  error,     llnd. 

6.  In  an  action  on  the  case,  by  two  joint  owners  of  a  vessel 
against  a  captain  for  negligence  and  delay  in  making  a  voyage, 
it  2vc(S  held  that,  upon  the  death  of  one  of  them,  the  right  of  ac- 
tion survived  to  the  otlier,  and  that  it  was  a  misjoinder  to  bring- 
in  the  executor  of  the  deceased  joint  owner.  And,  it  was  held 
further,  thai;,  as  the  misjoinder  appeared  on  the  record,  the  proper 
mode  of  taking  advantage  ol  it  was  by  demurrer,  motion  in  ar- 
rest, or  writ  of  erroi',  and  not  by  a  motion  for  a  non-sint  on  the 
trial.      Bond,  v.  Hilton,  6  Jones,  180. 

7.  The  allegation  of  a  contract  made  with  five  persons,  who 
are  plaintiffs,  is  not  supported  by  proof  of  a  contract  made  with 
three,  and  the  variance  is  a  ground  for  nonsuit  at  the  trial,  on  the 
general  issue.     Mm  ray  w  lJavi.%  6  Jones,  341, 

8.  Though  a  covenant  be  with  two  or  more  jointly,  yet  if  the 
interest  and  cause  of  action  of  the  covenantees  be  several,  tlie 
covenant  shall  be  taken  to  be  several,  and  each  of  the  covenantes 
may  bring  an  action  for  his  particular  damage,  notwithstanding 
that  tlie  words  of  the  covenant  are  joint.  Little  v.  Hobhs,  8 
Jones,  179. 

See  (Abatement — Plea  in  abatement  for  what  causes  to  be 
put  in,  6.)  (Husband  and  Wife — Of  suits  by  and  against  hus- 
band and  wife,  2-3-4-5-10-11-12-13-15-16-17.)  (Joint  Obli- 
gations.) 

II.       OF  THE  JOINDER  OF  ACTIONS. 

1.  In  an  action  on  the  case,  a  count  in  deceit  for  knowingly 


PLEADING— II-III.  961 

misrepresenting  the  soundness  of  a  chattel,  may  be  joined  with 
a  count  for  a  breach  of  the  warranty  of  the  soundness  of  the 
same  chattel.     Lassiterv.  Ward,  11  Ired.,  443. 

2.  A  count  for  trespass  vi  et  armis  to  slaves  may  be  joined  with 
trespass  quare  dau.svm  /regit,  in  the  same  declaration.  McClees 
V.  Sike'J,  1  Jones,  310. 

3.  A  count  in  trespass  for  willfully  killing  a  horse  may  be 
joined  AAith  trespass  quare  dauswn  /regit  in  entering  upon  the 
plaintiff's  land;  and  where  no  lormal  declaration  is  filed,  such 
additional  count  will  be  understood  as  having  been  inserted. 
Rippey  v.  Miller,  1  Jones,  479. 

4.  A  count  in  case  for  a  deceit  in  a  sale  of  goods  cannot  be 
joined  with  one  in  assumpsit  on  a  warranty  of  soundness.  Cham- 
berlain V.  Robertson,  7  Jones,  12. 

See  (Pleading — Of  the  writ  and  declaration,  4-9-28.) 

ni.       OF    THE    WRIT    AND    DECLARATION. 

1.  A  writ  in  debt,  "that  they  answer  unto  him  of  a  plea  of  debt 
of  1000  dollars,"  held  good  on  a  demurrer  to  a  plea  in  abatement, 
that  the  writ  did  not  run  in  the  debet  and  detinet.  Guion  v.  ilfc- 
CuUough,2  .Mar.,  78,  (132.) 

2.  In  slander,  words  spoken  after  the  time  laid  in  the  declar- 
ation will  not  support  it.  Quaere  by  Haywood.  Witherspoon  v. 
Isbell,  1  Hay.,  12,  (17.) 

3.  Where  a  special  contract  is  sued  on,  it  should  be  set  forth 
precisely  as  it  is ;  any  variance  between  it  as  set  forth  and  the 
proof  will  be  fatal.     Anonymous,  1  Hay.,  488,  (562.) 

4.  A  count  upon  the  promise  of  the  intestate  may  be  joined 
with  one  upon  the  promise  of  the  administrator  to  pay  the  debt 
of  the  intestate.  WUkings  v.  Murphy,  2  Hay.,  282,  (460,)  S.  P. 
Gregory  v.  Hooker,  1  Hawks,  394. 

5.  On  an  appeal  from  the  county  to  the  superior  court,  the 
plaintiff  shall  not  change  the  declaration  filed  in  the  county 
court,  and  if  there  were  no  writteii  declaration  he  shall  be  con- 
fined to  the  grounds  of  action  declared  on  in  the  court  below. 
Davis  v.  Gib.'ion,  Conf.  Piep.,  102,  (233.) 

6.  In  penal  actions  the  charge  must  be  made  with  precision, 
and  therefore  where  the  declaratton  only  alleged  by  way  of 
recital,  as  "that  whereas  the  said  defendant  having,  &c.,"  it  wae 
held  bad.     Harrington  v.  3IcFarlnnd,  Conf.  Rep.,  408.,  (476.) 

7.  A  writ  in  debt  on  a  penal  statute,  which  called  on  the  de- 
fendant "to  render  to  the  plaintiff  the  sum  of  £50  due  under  an 
act  of  the  gcn(;ral  assembly  to  him,  and  which  from  him  he 
unjustlv  detains,  itc,"  is  substantially  in  debet  and  detinet.  Page 
V.  Farmer,  2  Miirpii.,  288,  S.  C.  1  Car.  L.  R.,  278,  (29.) 

8.  Where  one  count  in  a  declaration  for  a  libel  charged,  "that 
the  defendants  coml)ined  and  contrived  to  cause  it  to  be  believed 

19* 


962  PLEADING— III 

that  the  plaintiff  was  a  Bot  and  a  common  drunkard,"  and  a 
second  count  charged  " that  the  defendants  fvirther  contriving 
and  intending  as  aforesaid,"  composed,  &c.,  the  hbel,  &c.,  and  a 
verdict  was  found  for  the  plaintiff  on  the  second  count  only,  it 
loasheldWmt  the  words  "further  contriving  and  intending  as 
aforesaid"  referred  to  the  allegations  contained  in  the  introduc- 
tory part  of  the  first  count,  as  to  the  intent  of  the  libel,  and  was 
sufficient  without  repeating  the  allegation  as  to  such  intent, 
Frazier  v.  Felton,  1  Hawks,  231. 

9.  A  count  against  an  executor,  charging  him  upon  his  promise 
as  such,  may  be  joined  with  a  count  upon  a  promise  of  his  tes- 
tator.     Gregory  v.  Hool-er,  1  Hawks,  394, 

10.  It  is  necessary  f  r  a  plaintiff  to  state  in  his  declaration, 
not  only  that  he  has  sustained  damage,  but  also  how  he  has  been 
damaged.     Gardiner  v.  Sherrod,  2  Hawks,  173. 

11.  A  variance  between  the  writ  and  declaration,  the  former 
beino"  in  debt  and  the  latter  in  assumpsit,  is  fatal  even  after  ver- 
dict    Stamps  V.  Graves,  4  Hawks,  102. 

12.  A  declaration  for  a  libel  must  undertake  to  set  out  the 
very  words;  to  give  the  substance  and  effect  is  not  sufficient, 
and,  if  on  the  trial  the  libel  produced  does  not  correspond  with 
that  set  out,  the  plaintiff  must  fail,  since  no  reason  can  be  as- 
sio-ned  why  he  should  not  be  required  to  prove  what  he  is  re- 
qiiired  to  allege.      Whitakerv.  Freeman,  1  Dev.,  271. 

13.  After  the  defendant  has  pleaded  to  the  warrant,  so  as  to 
meet  the  case  made  by  it,  the  plaintiff"  cannot,  upon  an  appeal, 
declare  in  such  a  manner  as  to  make  the  plea  ineffectual.  Doiv- 
ney  v.  Young,  1  Dev.,  432. 

14.  Where  a  writ  was  to  answer  "A,  guardian  of  B,"  the 
words  "  guardian  of  B  "  were  /(eld  to  be  but  matter  of  descrip- 
tion, and  the  suit  to  be  the  suit  of  A,  and  not  of  the  ward ;  and 
evidence  of  the  ward's  title  was  therefore  irrelevant.  Bowd  v. 
Wadsioorth,  2  Dev.,  130. 

15.  In  England  no  advantage  can  be  taken  of  a  variance  be- 
tween the  original  writ  and  the  declaration,  except  upon  oyer 
of  the  writ,  because  the  writ  issues  from  another  coiirt,  and  does 
not  become  part  of  the  record  until  oyer  be  had  of  it.  But  here 
the  writ,  being  issued  from  and  returned  to  the  same  court,  is 
part  of  the  record  without  oijer;  hence  a  variance  between  the 
writ  and  declaration  is  fatal  even  after  verdict.  Glissonv.  Her- 
ring, 2  Dev.,  156.     (Overruled,  see  West  v.  Batledge,  4  Dev.,  31.) 

16.  The  failure  to  serve  the  defendant  with  a  copy  of  the  de- 
claration filed  in  the  county  court,  five  days  before  the  first  day 
of  the  term,  can  only  be  taken  advantage  of  l)y  plea  in  abate- 
ment, and  not  by  a  mere  motion  to  dismiss.  Laverty  v.  Turner, 
4D«}v.,  275.  .       ^ 

17.  A  count  in  a  declaration  for  a  malicious  and  excessive 
levy  and  sale  by  a  constable,  which  states  a  seizure  and  sale  by 
the  officer  of  "the  property,"  to  a  greater  value  than  the  debt 


PLEADING— III  963 

to  be  satisfied,  is  insufficient ;  for  "  the  pro}Derty  "  may  be  either 
real  or  personal;  if  the  former,  then  the  plaintiff'  sustained  no 
injury  by  the  acts  of  the  defendant,  because  neither  the  levy  nor 
sale  by  a  constable  can  divest  the  owner  of  land  of  his  title  or 
disturb  his  possession ;  if  the  latter,  then  there  is  no  averment 
that  it  was  not  an  entire  thing,  or  that  there  were,  at  the  time 
of  the  levy,  other  goods  or  chattels  of  the  plaintiff,  known  to  the 
defendant,  in  such  dift'erent  or  distinct  parcels  or  kinds,  that  the 
defendant  might  have  taken  a  reasonable  part  thereof,  and  not 
the  thing  which  he  did  take,  and  which  was  of  greater  value 
than  the  sums  to  be  raised.  Hotieycut  v.  Angel.,  4  Dev.  and  Bat., 
306. 

18.  In  a  declaration  against  a  constable  for  a  fraudulent  levy 
upon  the  lands  of  the  plaintiff,  and  a  return  of  tlie  same  to  court, 
whereljy  au  order  of  sale  was  obtained,  and  the  land  sold  by  the 
sheriff,  it  is  necessary  to  state  an  eviction  of  the  plaintiff,  or  some 
disturbance  hy  the  defendant,  or  by  some  person  dei'iviug  title 
under  the  sheriff's  sale  and  conveyance;  and  the  allegation  that 
the  sheriff  "made  title  to  the  purchaser,"  without  stating  that 
some  person  in  particular,  claiming  and  getting  title  by  virtue 
of  the  sheriff's  deed,  turned  or  kept  the  plaintiff  out  of  possession, 
is  insufficient.     IIM. 

19.  Where  a  bond  was  made  payable  to  A  "as  executor," 
with  a  condition  that  the  obligor  would  pay  a  certain  sum  for 
the  lease  of  lauds  belonging  to  the  estate  of  A's  testator,  and  to 
return  the  premises  in  good  repair,  it  was  held  that  the  writ  and 
declaration  might  be  in  the  name  of  A  without  describing  him 
as  "  executor,"  that  word  being  mere  surplusage.  JVaddeU  v. 
3Ioore,  2  Irecl.,  261. 

20.  Where  claims  put  into  a  constable's  hands  for  collection 
belong  to  a  copartnership,  all  the  members  of  the  firm,  being  in 
law  the  "  persons  injured,"  must  be  relators  in  an  action  tor  a 
breach  of  the  constable's  bond  in  not  collecting  such  claims,  not- 
withstanding any  private  arrangement  among  the  partners,  as 
to  the  beneficial  interest  in  the  proceeds  of  the  claims.  State  v. 
Lir/htfoot,  2  Ired.,  306. 

21.  Where  a  debt  is  due  to  A,  and  he  places  it  in  the  hands 
of  a  constable  for  collection,  he  is  the  only  person  who  can  main- 
tain as  relator  an  action  on  the  official  bond  of  the  constable  for 
breach  of  duty,  notwithstanding  he  may  have  afterwards  as- 
signed his  interest  in  the  debt  to  another  person.  State  v.  Dea- 
ver,  3  Ired.,  56. 

22.  In  a  declaration  for  slander  in  charging  the  plaintiff  with 
perjury,  where  it  is  alleged  that  the  plaintiff  had  been  in  a  cer- 
tain suit  sworn  and  examined  on  oath  as  a  witness,  &c.,  it  is  not 
necessary  to  state  what  he  testified  on  such  trial.  At  all  events, 
such  objection  comes  too  late  after  verdict.  WhitaJccr  v.  Carter, 
4  Ired.,  461. 


964  PLEADING— III. 

23.  In  an  action  on  the  case  in  the  nature  of  a  conspiracy, 
charging  that  the  defendants  combined  to  injure  the  planitiff's 
credit,  it  is  necessary  for  the  plaintiff  to  aver  ni  his  declaration 
the  means  by  which  such  injury  was  intended  to  be  effected. 
Setzarv.  Wiison,4:lYed.,bOl. 

24  A  declaration  against  a  minister  of  the  gospel,  or  a  justice, 
under  the  act  of  1778,  for  a  penalty  in  marrying  persons  who  had 
not  complied  with  the  requirements  of  the  act,  must  state  not 
only  that  they  were  married  without  a  license,  but  also  that  no 
certificate  ot  the  pubUcation  of  banns  was  produced  to  the  min- 
ister or  justice;  and  a  mere  averment,  that  there  was  no  license 
and  that  there  had  been  no  publication  of  banns,  is  not  sufficient 
to  support  the  declaration.  Dml-e  v.  iMcJIinn,  5  Ired.,  639.  (See 
Kev.  Code,  ch.  G8,  sees.  1,  2,  3  and  6.) 

25.  Where  a  plaintiff,  having  two  judgmentsagamst  the  same 
defendant,  b:  ought  his  action  against  the  sheriff  for  an  escape 
and  declared  on  both  the  judgments,  it  was  held  that,  though 
he  could  not  recover  on  one,  he  might  on  the  other  judgment. 
Lash  V.  Ziqlar,  5  Ired.,  702. 

26.  Where  an  action  is  brought  for  a  penalty  imposed  by  a 
statute,  or  actions  are  brought  founded  on  rights  created  by  a 
statute,  and  for  which  there  was  no  action  at  common  law,  the 
declaration,  like  an  indictment,  must  be  framed  on  the  statute  or 
statutes,  stating  not  only  the  circumstances  necessary  to  bring 
the  case  within  the  meaning  of  the  act,  but  also  expressly  count- 
ing on  it.     McKay  v.  Woodle,  6  Ired.,  352. 

27.  This  rule  does  not  embrace  the  case  where  a  statute  is- 
simply  remedial,  giving  an  easier  or  cumulative  remedy  for  a 
wrong,  for  which  there  was  a  remedy  at  common  law;  therefore, 
in  an  action  for  Avorrying,  maiming  and  killing  the  hogs  of  the 
plaintiff,  while  trespassing  on  the  enclosed  ground  of  the  defen- 
dant, the  same  not  having  a  sufficient  fence  according  to  the  act 
of  1831,  it  is  not  a  sufficient  objection,  that  the  declaration  does 
not  refer  to  the 'statute,  for  the  plaintiff  had  a  remedy  at  the  com- 
mon law.     Ibid.     (See  Rev.  Code,  ch.  48,  sec.  3.) 

28.  A  count  for  a  forcible  entry  may  be  joined  with  one  for  an 
assault  and  battery,  in  the  same  declaration.  Flinn  v.  Anders,  9 

Ired.,  328.  ,    ,.       • 

29.  A  declaration,  commencing  and  concluding  lu  case,  but  m 
the  body  of  it  setting  forth  a  debt  under  a  penal  statute,  seemsto 
be  sufficient  without  a  demand  for  damages.  But  whether  so  or 
not,  according  to  the  strict  rules  of  pleading,  a  defect  in  this 
particular  is  cured  by  the  act  of  amendments,  Ilev.  Stat.,  ch.  3, 
sec.  5.   Brooks  v.  King,l  Jones,  45.    (x'C  Rev.  Code,  ch.  3,  sec.  5.) 

30.  A  plaintiff,  commencing  by  a  warraiit,  may,  when  the  case 
is  taken  to  a  higher  court,  file  a  declaration,  setting  forth  his 
cause  of  action  more  distinctly  than  it  is  set  forth  in  his  warrant, 


PLEADING— III-IV.  965 

takiniE^  care  to  make  no  departure  fi-om  it.  Gerrish  v.  Johnson^  1 
Jones,  335. 

31.  The  plaintiff,  according  to  the  ordinary  practice  among 
the  members  of  the  bar,  is  entitled  to  the  benefit  of  being  con- 
sidered as  having  filed  his  declaration,  according  to  the  facts  as 
set  forth  in  a  case  agreed.     Ibid. 

32.  According  to  the  general  nnderstanding  of  the  profession, 
when  a  plaintiff  is  not  required  to  file  a  formal  declaration  the 
court  is  to  assume  that  his  declaration  contains  all  the  averments 
necessary  to  sustain  his  case.     Jones  v.  Jones,  1  Jones,  495. 

33.  In  a  declaration  for  a  deceit  in  the  sale  of  a  fishery,  the 
price  paid  for  the  property  is  not  a  material  constituent  of  the 
cause  of  action,  and  need  not  be  proved  as  alleged.  Pettijolin  v. 
Williams,  2  Jones,  33.  ^  -    J 

34.  _  One  justice  of  a  county  cannot  make  a  contract  with  his 
associate  justices  in  the  official  character,  so  as  to  enable  them 
to  sustain  a  suit  as  "justices"  of  the  county.  Justices  of  Tyrrel 
v.  Sirmnons,  3  Jones,  187. 

35.  It  seems  that  in  the  case  just  above  stated,  the  contract 
might  have  been  alleged  to  have  been  made  with  the  county  as 
a  corporation,  so  as  to  have  sustained  a  suit  in  the  name  of  the 
county.     Ibid 

_  36.  Where  a  constable,  to  relieve  himself  from  liability  for 
failing  to  collect  a  judgment  in  his  hands,  paid  it  off  to  the 
plaintiff  therein,  and  then  put  it  into  the  hands  of  another  con- 
stable to  be  collected  for  himself,  it  was  held  that,  as  there  was 
some  evidence  that  the  former  constable  had  purchased  the  claim' 
he  might  properly  be  the  relator  in  a  suit  on  the  bon  i  <  :f  the  de" 
fendant  for  having  failed  to  collect  the  money.  Garr  >w  v  Mdx. 
ivell,  6  Jones,  529. 

37.  According  to  the  general  understanding  of  the  profession, 
where  parties  have  gone  to  trial  without  a  formal  declaration, 
the  plaintiff  is  to  be  taken  to  have  relied  on  one  suited  to  the  case 
made  by  the  proof     Davis  v.  Goldston,  8  Jones,  28. 

See  (Bills  of  Exchange  and  Prgmissory  Notes — Remedv  on  a 
bill  or  note,  Declaration,  Pleadings  and  Evidence.)  (Contract- 
Construction  of  contracts  and  where  an  action  will  lie,  35.) 
(Evidence— Parol  evidence,  when  admissible.)  (Executors 
and  Administrators— Of  suits  by  executors  and  admin  trators, 
1-3-25-26-27.)  (Mandamus  and  quo  warranto,  7-8.)  (Penal 
statutes,  7-l(J--15.)  (Pleading— Of  pleas,  replications  and  de- 
murrers, 42.)  (Process,  1-2-3-5-6-7-8-9-10-11.))  (Sheriff— 
Of  the  liability  of  sheriffs  and  their  sureties,  30.) 

IV.       OF    PLEAS,    REPLICATIONS    AND    DEMURRERS. 

1.  In  aii  action  of  trespass  quare  claus urn  /regit,  the  defendant 


966  PLEADING— IV. 

may,  under  the  plea  of  the  general  issue,  give  in  evidence  a 
license.     Cox  v.  Dove^  Mar.,  43,  (35  ) 

2.  A  plea  since  the  last  continuance  is  a  Avaiver  of  all  former 
pleas,  and  an  admission  of  the  declaration.  Greer  v.  Sheppard, 
1  Hay.,  96,  (111,)  S.  P.  McDaniel  v.  Tate,  Ibid,  452,  (520.)  (This 
rule  is  altered.     Rev.  Code,  ch.  31,  sec.  57,  rule,  12.) 

3.  If,  pending  a  suit  against  administrators,  their  letters  be 
repealed,  they  must  plead  \i  p)uis  darrein  continuance  at  the  first 
term  thereafter,  else  it  will  be  too  late.  Bailey  v.  Cochrin,  1 
Hay.,  104,  (120.) 

4.  A  plea  to  the  jurisdiction  of  the  court  under  the  act  of  1793, 
(Rev.  Code,  ch.  31,  sec.  37,)  is  to  be  decided,  as  to  the  amount 
for  which  the  suit  is  brought,  only  by  tlie  writ  and  declaration. 
AllenY.  Stokes,  1  Hay.,  122,  (142,)  S.  P.  McNauqhton  v.  Hunter, 
Ibid,  4:54,  (522.) 

5.  In  an  action  of  covenant,  on  the  plea  of  "covenants  per- 
formed," the  defendant  cannot  be  permitted  to  say  that  there  is 
no  such  covenant  as  that  set  forth  in  the  declaration.  Anonymous, 
1  Hay.,  144,  (166.) 

6.  If,  in  such  case,  the  jury  find  a  verdict  upon  matters  not 
s^ubmitted  to  them  in  the  issues,  it  will  be  void  as  to  such  mat- 
ters, while  it  may  be  good  as  to  the  issue  to  which  it  is  respon- 
sive.    Ibid. 

7.  The  court  must  l)e  satisfied  of  the  probable  truth  of  a  plea 
since  the  last  continuance,  before  they  will  permit  it  to  be  put 
in.     McNa.ughton  v.  Naylor,  1  Hay.,  180,  (207.) 

8.  A  plea,  subsequent  to  the  term  at  which  a  former  one  was 
put  in,  is  not  necessarily  a  plea  since  the  last  continuance.  It 
may  have  been  added  by  permission  or  b_y  consent,  as  an  origi- 
nal plea.     Peak  v.  Folsome,  1  Hay.,  181,  (208.) 

9.  A  general  demurrer  to  a  plea  admits  the  fact  pleaded,  but 
denies  its  sufficiency  in  law;  a  special  demurer  does  not  admit 
the  fact  pleaded,  but  setting  forth  specially  any  informality  or 
defect  in  the  plea,  refers  it  to  the  court  to  decide  on  such  infor- 
mality or  defect.     Da.vison  v.  3IuU,  1  Hay.,  364,  (417.) 

10.  An  account  against  the  plaintiff  cannot  be  given  in  evi- 
dence under  the  plea  of  payment.  Evans  v.  Norris,  1  Hay., 
411,  (473.) 

11.  A  demurrer  to  a  plea  in  abatement  for  want  of  an  affidavit 
is  improper;  the  proper  course  is  to  move  the  court  not  to  allow 
the  plea  to  be  received.      Corse  v.  Ledbetfer,  2  Hay.,  15,  (164.) 

12.  Where  there  is  a  demurrer  to  a  plea,  though  the  court  is 
about  to  overrule  it,  it  may  permit  it  to  be  withdrawn  and  a 
replication  entered.     Keaisv.  Shepard,  2  Hay.,  218,  (390.) 

13.  Where  plaintiff'  sued  in  his  surname  only,  and  there  was 
a  plea  in  abatement,  that  his  christian  name  was  not  inserted,  a 
replication,  that  the  plaintiff"  was  as  well  known  by  his  title  of 


PLEADING— IV.  967 

courtesy  as  by  his  christian  name,  was  held  bad.  Ldbat  v.  Etlis, 
Tay.,  148,  (92.) 

14.  To  a  plea  of  the  statute  of  limitations  to  debt  on  a  bond  by  a 
British  subject,  a  replication  of  the  treaty  of  peace  of  1783  is 
bad.     Miller  v.  Gordon,  Tay.,  300,  (130.) 

15  Every  plea  has  reference  to  the  commencement  of  the  ac- 
tion, or  at  least  to  the  time  of  the  process  served.  Sinoot  v. 
Wright,  Conf  Rep.,  374,  (449.) 

l(i.  To  an  action  of  debt  on  the  judgment  of  a  court  of  record 
in  another  state,  nil  debet  is  a  bad  plea;  it  should  be  nul  tiel  re^ 
record.  Wade  v.  Wade,  Conf  Rep.,  486,  (538,)  S  P.,  Carter 
V.  Wilson,  1  Dev.  and  Bat.,  362,  Knight  v.  Wall,  2  Dev.  and  Bat., 
125. 

17.  The  statute  of  limitations  may  be  pleaded  after  is- 
sue joined  under  peculiar  circumstances,  on  payment  of 
full  cost.  Reed  v.  HeMer,  Conf  Rep.,  488,  (540.)  S.  R,  Johnston 
V.  Williams,  Ibid,  518,  (505.)  Hamilton  v.  Shepard,  2  C.  L. 
Rep.  471,  (357.) 

18.  To  the  plea  of  set  off  there  may  be  a  double  replication. 
Holding  v.  Smith,  1  Murph.,  154. 

19.  To  debt  on  a  bond,  the  plea  of  "illegal  consideration  "  is 
bad,  as  being  too  general  to  give  notice  of  the  particular  illegal 
consideration  intended  to  be  relied  on  as  a  defence  Boyt  v. 
Cooper,  2  Murph.,  286,  S.  C,  1  Car.,  L.  R.,  277,  (28.) 

20.  A  plea  of  alien  enemy,  entered  at  a  term  subsequent  to 
that  at  which  the  original  pleas  were  entered,  is  not  a  good  plea 
in  bar  of  the  action  generally,  but  only  in  bar  of  the  further 
maintenance  of  the  suit,  and  being  a  plea  since  the  last  continu- 
ance, shall  not,  since  the  act  of  1796,  amount  to  a  relinquish- 
ment of  former  pleas.  Tearev.  W/rite,  2  Car.,  L.  R.,  112,  (210,) 
(See  Iiev.  Code,  ch.  31,  sec.  57,  Rule  12.) 

21.  In  an  action  on  a  contract,  whenever  it  appears  in  the 
pleadings  that  there  are  other  parties  who  ought  to  be  plaintiffs, 
it  may  be  demurred  to,  or  taken  adsantage  of  by  motion  in  arrest 
of  judgment  or  on  a  writ  of  error;  but  if  the  objection  do  not